I have a circumstance in which a contractor I am considering partnering with on a new project is in process of fighting a court battle for payment of unwritten change orders in an amount greater than $100,000.00.  His lawyer tells him that he will have no trouble winning this case, after all the client was well aware that additional work beyond the contract would cost more.  I believe that a court is going to tell him that work done without written change orders is considered part of the original quote, and that his (very expensive) lawyers sunny ‘We can win this!’ attitude is self serving.  Obviously this contractor thinks I am wrong, and his high priced attorney is right.  I think the court is going to tell him he is SOL and he should be paid a contracted bill as quoted because there are no written change orders. It seems cut and dried to me, but then I would not do a major change to contracted work without a change order.  The outcome of this might change my mind about putting him in a position that could cause trouble for my company in the future. What do you guys think?

I am not an attorney.  To protect yourself I suggest that you get a second opinion before partnering with a contractor that racked up that much without written change orders.  If you get an opinion, then the attorny should be representing you and not the partner so he should look out for you.

From my own experience let me ask the following questions:

Did the contract specify that change orders had to be in writing?  Are there witnesses that can testify that during the construction the homeowner knew about change orders that would cost more?

Oral contracts for change orders can be enforced but it gets down to who the court will believe.

Leaving aside the question of whether the contractor will ever get paid, it appears that he has very poor judgement. I'd think pretty carefully about putting him in a position where his judgement could affect your livelihood.

Let me tell you, this makes the hair stand on the back of my neck, but my business partner think this is alright. And yes, sometimes a judge gives a homeowner the benefit of the doubt, but this was a commercial job. I think the judge is going to tell this guy to stay on the porch and leave the big jobs to the big dogs ... The problem is I can not wait for the judge to make a decision, and later 'I told you so' is not going to help us.

Gawd, it was so much easier being a derelict in the alley ... Anyone else?

dragmit;

Having been down this road myself a few times, I doubt you will gain anything without signed change orders, of course the lawyer is going to tell you; you have a good chance so he can suck as much money as he can out of the case.

It is foolish for both parties to proceed without signed change orders, but I will admit I have done it a few times myself. Lessons learned the best when it comes out of your wallet

Judges rule with respect to the law, not with respect to sympathies for any one class of person or business. Sometimes, it might appear they do but that is generally because businesses have a more extensive set of requirements (details) to meet than individuals.

It's the rare case that doesn't go to the details and the details depend on what state you are in.

Are you worried that the contractor might be insolvent if he loses the case or just that he made a bad decision that is going to court? Because lots of people in business have had that happen.

If it is a Commercial Contract the surely there is a commercial contract. What does it say?

I am not privy to the contract, only a 'he said she' said Como.

I hear you ICF. I think I will still do business with this guy whatever the case, he can eat the hit. I have trusted clients without damage before, and I could have easily been in the same spot. The guys with the scars are usually the better fighters anyway ... Like when I was a kid, I lit a match over an empty gas can to see if there was rust in it. "Wont do that again will ya?" my dad said ... Damn straight! The eye brows grew back anyway!

Thanks guys!