Universal Builders, Inc. v. Moon Motor Lodge, Inc. case brief

Universal Builders, Inc. v. Moon Motor Lodge, Inc.; (Sup. Ct. of PA, 1968); CB 850; Notes 60

• Facts: P making major renovation to Moon Motor Lodge pursuant to detailed written K that had been renegotiated at least once. This was done by reference to architect’s plans and drawings. Two key provisions in the contract saying which said 1) changes must be agreed to in writing and approved by architect’s signature, and 2) if delayed time set for completion, only postponed by request in writing. P had agent at site daily, repeatedly requested changes and P repeatedly agreed w/o getting written change order. Project late as result.
• Issue: P claims that D waived the writing clause because it had the opportunity to request a writing but failed to do so; Ds unilateral behavior. Does D have to pay for all additions and is P liable for delay damages?
• Holding: The question is about the provision which states that the change orders must be in writing. Court said D waived provision for change orders but P still subject to damages for not meeting deadline. Under §2-209(2) writing provision was waived but only in this instance; agreement not modified; judgment for P.