Section 8.11 Waiver of Written Change Order Requirement by Course of Conduct or Silence

• Library: Construction Law 2016 Supp

J. (§8.11) Waiver of Written Change Order Requirement by Course of Conduct or Silence

The parties’ action (or inaction) and dealings may effectuate a waiver of literal compliance with contract provisions. Missouri courts have held that an owner’s silent acceptance of extra work will also suffice to waive the requirement of a written change order. In Markway Construction Co. v. Kirchenbauer, 769 S.W.2d 836 (Mo. App. E.D. 1989), the owners accepted extra work performed in accordance with unsigned change orders without complaining or otherwise objecting to the performance of the work. The owners were obligated to pay for the extra work because their acceptance of the work without objection constituted a waiver of the contractual requirement for written change orders.

The parties’ course of conduct can result in a waiver of a written change order requirement. In H. B. Deal Construction Co. v. Labor Discount Center, Inc., 418 S.W.2d 940 (Mo. 1967), the parties established a routine practice for handling change orders. The contractor, owner, and mortgagee accepted the practice as constituting full compliance...