WATKINS & SON V. CARRIG
91 N.H. 459, 21 A.2d 591, 138 A.L.R. 131 (1941).
NATURE OF THE CASE: Carrig (D) took exception to a referee's findings that a written
contract for excavation work was superseded by an oral contract after rock was found on
excavation site.
FACTS: Watkins and Son (P) agreed to excavate a cellar for Carrig (D) for a stated price.
The contract provided that all material was to be removed. There were no contingencies in
the contract for rock and D did not mislead P regarding the nature of the grounds upon which
the work was to be performed. The parties did not take rock as being a contingency of the
contract. When P started to work, he discovered that two-thirds of the space was solid rock.
P's manager notified D, and the parties orally agreed that P should remove the rock at a
unit price about nine times higher than the unit price for excavating upon which the gross
amount to be paid according to the written contract was calculated. When the work was
finished, P sought to recover the increased payments. D argued that the oral agreement was
not supported by consideration; P's promise was illusory because P had a preexisting duty to
excavate the cellar. A referee found that the oral agreement superseded the written
contract. That is the parties agreed to rescind the written contract as though it had not
been made and entered into an oral one as though it were the sole and original one. D
appealed.
ISSUE:
RULE OF LAW:
HOLDING AND DECISION:
LEGAL ANALYSIS:
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