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Brian Construction (P) was assigned a contract to build a post office. P then entered into a contract with Brighenti (D) who agreed to perform all excavation, grading, site work, asphalt pavement, landscaping, and concrete work for $104,326 and to do everything necessary and requisite for the completion of these duties. D commenced the work and soon discovered considerable debris below the surface; this was not reflected in the test borings for the excavation. The cost of the removal of this rubble was not included in the plans. P then notified the architect for the owner, but the owner would not give written authorization for the removal of the debris. D then ceased work on the site and notified P and offered to complete the work if P were to remove the debris. Then P and D entered into an oral agreement to remove the rubble at cost plus 10%. D began work again but abandoned the cite when P refused to confirm the transaction in writing. P completed the contract. P sued. Judgment was given to D on P’s claims and for P on D's counterclaim. P appealed.

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