Present: All the Justices 

CARDINAL DEVELOPMENT COMPANY 

OPINION BY JUSTICE LEROY R. HASSELL, SR. 

v. Record No. 971001 February 27, 1998 

STANLEY CONSTRUCTION COMPANY, INC. 

FROM THE CIRCUIT COURT OF HANOVER COUNTY 

Richard H. C. Taylor, Judge 

I. 

 In this appeal, we consider issues that arose during 

the trial of an action for breach of a construction 

contract. 

II. 

 Stanley Construction Company, Inc. (Stanley 

Construction), filed its amended motion for judgment against 

Cardinal Development Company (Cardinal). Stanley 

Construction alleged that Cardinal breached its construction 

contract by refusing to pay Stanley Construction for certain 

additional work it had performed. Stanley Construction also 

alleged that it was entitled to recover damages from 

Cardinal under a theory of quantum meruit. Cardinal denied 

that it was indebted to Stanley Construction and filed a 

counterclaim seeking to recover monies that it purportedly 

overpaid to Stanley Construction. 

 At the conclusion of a bench trial, the trial court 

found that Cardinal had breached the contract, entered a 

judgment in favor of Stanley Construction in the amount of 

$99,894.80, and denied Cardinal’s counterclaim. Cardinal 

appeals. 

III. 
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A. 

 We will review the evidence in the light most favorable 

to Stanley Construction, the prevailing party below. Horton

v. Horton, 254 Va. 111, 115, 487 S.E.2d 200, 203 (1997). 

Because the trial court heard the evidence ore tenus, its 

findings based on an evaluation of the testimony have the 

same weight as a jury verdict. Id. We will affirm the 

trial court’s judgment unless it appears from the evidence 

that the judgment is plainly wrong or without evidence to 

support it. Code § 8.01-680; Horton, 254 Va. at 115, 487 

S.E.2d at 203, Tuomala v. Regent Univ., 252 Va. 368, 375, 

477 S.E.2d 501, 505-06 (1996). 

B. 

 Cardinal planned to develop a residential subdivision 

called Battlefield Green on a tract of land in Hanover 

County. Cardinal divided the subdivision into several 

sections: B-5, B-6, A-7, and A-8. Sections A-7 and A-8 are 

the subjects of this dispute. Cardinal intended to 

construct single-family homes in Section A-7 and townhouses 

in Section A-8. 

 Cardinal executed a contract with Holly & Associates, 

Ltd., an engineering and surveying firm, to prepare the 

subdivision plats and construction plans for the streets, 

sanitary sewer, storm drainage, water distribution, and 

erosion control. Cardinal also executed a contract with 

Stanley Development to construct all the “improvements 

required by [Hanover] County to each section to include but 
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not limited to the roads, water, sewer, curbs, gutters, 

sidewalks, [and] drainage all pursuant to the plans and 

specifications prepared by Cardinal's engineers, Holly & 

Associates, Ltd.” This contract was “subject to [Hanover] 

County not making any substantial changes to the storm 

drainage system in either Section A-7 or Section A-8.” 

Cardinal agreed to pay Stanley Construction $1,025,000 for 

performance of the work. 

 Holly & Associates provided Stanley Construction with a 

building plan for Section A-7 in February 1991, before 

Stanley submitted its bid to Cardinal. This building plan 

indicated that 42 lots would be created in Section A-7. 

Even though a plat existed which indicated that 62 lots 

would be constructed on Section A-7, this plat was not a 

building plan, and Stanley Construction based its price on 

the building plan for Section A-7. Subsequently, Holly & 

Associates developed a building plan for Section A-7 which 

increased the number of lots from 42 to 62. 

 Hanover County approved Cardinal’s subdivision plans 

for Section A-7 in 1993. The approved plan differed 

substantially from the 42-lot plan that Holly & Associates 

had supplied to Stanley Construction in February 1991. 

 Randolph L. Middleton, Stanley Construction’s 

estimator, testified that he compared the 1991 A-7 building 

plan with the County-approved plan and determined that the 

later plan significantly increased the scope of the work 

that Stanley Construction would be required to perform. The 
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County-approved plan increased the number of building lots 

from 42 to 62, added a pedestrian path which was not shown 

in the original building plan, increased the amount of work 

necessary for erosion control and “clearing and grubbing” 

sites, added changes to the storm sewer system, and created 

an additional grade basin and an off-road right-of-way. 

 Calvin L. Stanley, president of Stanley Construction, 

sent a letter dated November 9, 1993 to Charles E. Ayers, 

Cardinal’s vice-president, director, and major stockholder, 

which summarized the substantial changes in the scope of the 

work. Later that November, Calvin Stanley met with Ayers, 

A. Wayland Stanley (chairman of the board of Stanley 

Construction), Middleton, and Vincent G. Robinson (a real 

estate broker and developer who performed work for 

Cardinal). During this meeting, A. Wayland Stanley and 

Calvin Stanley informed Ayers about the changes in the scope 

of work in Section A-7. After a discussion among the 

persons at the meeting, Ayers directed Stanley 

Construction’s employees to proceed with the work. 

 A. Wayland Stanley testified that during the November 

1993 meeting, Ayers “told us to go ahead and proceed with 

the work, proceed with it. The only thing he would expect 

from us was to treat him fairly . . . . To my knowledge, 

the only thing he ever told us was to proceed with the work 

and . . . be fair with him in the billing. That’s the only 

thing I remember him saying.” Middleton and Calvin Stanley 

testified that Ayers directed them to proceed with the work. 
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Middleton testified that Ayers told him to bill Cardinal 

fairly for performance of the work. 

 Hanover County also made changes to the plans for 

Section A-8 of the subdivision. Middleton, who compared the 

County-approved plans to the original plans that Holly & 

Associates had provided to Stanley Construction for purposes 

of bidding on the contract, identified substantial 

differences in the plans. The approved plans required, 

among other things, additional paving, curbs and gutters; 

construction of a turning lane; changes in sanitary sewer 

encasement; changes in the sewer system; clearing and 

grubbing; grading; soil erosion control; traffic control, 

and patching and excavation. 

 Stanley Construction performed some of the additional 

work and submitted invoices to Cardinal for payment. Some 

of those invoices specifically stated that the work 

performed was “extra work versus contract or original scope 

of work.” On one invoice, the notation “extra work” 

appears. Cardinal paid the invoices for extra work, even 

though occasionally it paid the bills late. Calvin Stanley 

testified that in the fall of 1995, Charles Ayers informed 

him that Cardinal would pay the outstanding bills for 

Section A-7 “before Christmas” of 1995. 

 Connie Z. Hawkes, Stanley Construction’s former office 

manager and secretary of the corporation, testified that the 

total amount of additional work that Stanley Construction 

performed because of changes in the scope of the work to 
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Sections A-7 and A-8 totaled $151,905.50. Although Calvin 

Stanley testified that Stanley Construction expected the 

County to make some changes in the plans that Stanley 

Construction relied upon to make its bid, Stanley 

Construction did not expect that Cardinal or the County 

would significantly expand the scope of the project. 

IV. 

 Cardinal argues that “[t]he [t]rial [c]ourt erred by 

admitting parol evidence to interpret the parties’ 

unambiguous lump sum, fixed price written contract.” 

Cardinal asserts that “[u]nder the parties’ contract, 

Stanley [Construction] bore the risk that performance might 

turn out to be more difficult or more expensive than it 

predicted,” and that “[p]arol or extrinsic evidence is 

generally inadmissible to alter, contradict, or explain the 

terms of a written contract . . . .” We do not consider 

this assignment of error because Cardinal did not argue in 

the trial court that the parol evidence rule barred 

admission of any evidence. Rule 5:25. 

V. 

 Cardinal argues that Stanley Construction failed to 

present sufficient evidence to support the trial court’s 

finding that Cardinal agreed to modify the lump sum, fixed 

price contract and pay Stanley Construction for the 

additional work. We disagree. 

 In Stanley’s Cafeteria, Inc. v. Abramson, 226 Va. 68, 

73, 306 S.E.2d 870, 873 (1983), we stated the following 
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principles which are relevant here: 

“[A] course of dealing by contracting parties, 

considered in light of all the circumstances, may 

evince mutual intent to modify the terms of [a] 

contract. See Kent v. Kent, 2 Va. Dec. 674, 678, 

34 S.E. 32, 33 (1899) . . . . But the 

circumstances surrounding the conduct of the 

parties must be sufficient to support a finding of 

a ‘mutual intention’ that the modification be 

effective, Warren v. Goodrich, 133 Va. 366, 388, 

112 S.E. 687, 694 (1922), and such intention must 

be shown by ‘clear, unequivocal and convincing 

evidence, direct or implied’, id. at 389, 112 S.E. 

at 694. And when one party claims that the other 

party has surrendered a right guaranteed by the 

contract, the party asserting such modification 

must prove either passage of valuable 

consideration, estoppel in pais, or waiver of the 

right. See Atlantic Coast Line v. Bryan, 109 Va. 

523, 65 S.E. 30 (1909).” 

 Applying these principles, we hold that there is clear, 

unequivocal, and convincing evidence in the record which 

shows that Cardinal and Stanley Construction intended to 

modify the terms of their contract and that Cardinal agreed 

to pay for the additional work that Stanley Construction had 

performed. As we have already stated, the building plan 

that Holly & Associates provided to Stanley Construction in 

February 1991 indicated that 42 lots would be created in 

Section A-7, but the County-approved plan provided for the 

creation of 62 lots, as well as other substantial changes. 

Upon receiving these plans, Calvin Stanley forwarded a 

letter to Ayers, Cardinal’s vice-president, and at a 

subsequent meeting, Ayers directed Stanley Construction to 

“proceed with the work” on Section A-7 and to “treat 

[Cardinal] fairly” in billing Cardinal for the additional 

work. Cardinal’s clear instructions that Stanley 
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Construction bill Cardinal fairly mean that Cardinal agreed, 

by its conduct, to expand the scope of the work and to pay 

for the additional work. Cardinal paid Stanley 

Construction’s detailed invoices for the additional work for 

one and one-half years without complaint and Ayers, on 

behalf of Cardinal, promised to pay for the completed work 

on A-7 “before Christmas of” 1995. Cardinal’s agreement to 

pay for the additional work, along with Stanley 

Construction’s actual performance of that work, constitutes 

valuable consideration sufficient to modify the contract. 

 After Calvin Stanley sent a letter to Ayers complaining 

about the substantial changes in the scope of the work for 

Section A-8, Cardinal further agreed to modify the contract 

when Ayers informed Stanley by letter: “I am in receipt of 

your letter with the price increases and assuming that they 

are items that you could not determine initially we will pay 

whatever the cost increase is based on unit pricing.” 

Calvin Stanley and Middleton testified that the changes in 

the scope of the work, including the substantial increases 

in the quantity of work and the materials required by the 

County-approved plans, were not items that they could have 

determined when the construction contract was executed. 

Cardinal also paid bills that Stanley Construction had 

submitted to it for work performed for Section A-8. 

VI. 

 Cardinal argues that Stanley Construction “presented 

insufficient evidence to prove ‘substantial changes to the 
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storm drainage systems’” and, thus, the trial court erred by 

awarding Stanley Construction damages for additional work 

associated with these items. We disagree. As we have 

already stated twice, at least two witnesses testified on 

behalf of Stanley Construction that the scope of the work 

shown on the County-approved plans for Section A-8 changed 

substantially, including the scope of the storm drainage 

work. Additionally, Cardinal, by its conduct, agreed to 

enlarge the scope of the work and pay Stanley Construction 

for that work. Thus, we find no merit in this contention. 

VII. 

 We reject Cardinal’s argument that the “trial court 

erred by allowing Stanley to recover on a theory not raised 

in Stanley’s motion for judgment.” Cardinal says that the 

trial court’s judgment is “flawed because it appears to be 

based on some sort of estoppel or waiver theory -- theories 

never raised by Stanley . . . .” Our review of the record 

indicates that the trial court considered this case as a 

breach of contract action and that the trial court’s 

judgment was not based upon principles of estoppel or 

waiver. 

VIII. 

 Cardinal argues that Stanley Construction presented 

insufficient evidence to prove its damage claims. We 

disagree. 

 Stanley Construction adduced extensive testimony in 

support of its damages. Stanley Construction presented 
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evidence of the amounts it billed to Cardinal for additional 

work performed on Sections A-7 and A-8, payments made by 

Cardinal, and the balance due. In addition, the trial court 

admitted Stanley Construction’s billing records in evidence. 

The trial court considered this evidence, which was disputed 

by Cardinal, and awarded Stanley Construction $54,319.76 in 

damages for work performed in Section A-7 and $45,575.04 for 

damages related to Section A-8. We cannot say, from our 

review of the record, that the trial court’s award is 

plainly wrong or without evidence to support it. Horton, 

254 Va. at 115, 487 S.E.2d at 203. 

 We also disagree with Cardinal’s contention that the 

trial court made an erroneous damage calculation. Cardinal 

argues that one of Stanley Construction’s trial exhibits 

contained mathematical errors and that the trial court 

relied upon this erroneous exhibit when calculating the 

award of damages. However, Stanley Construction responded 

at trial, and here, that its evidence of damages was based 

on actual work performed and invoices mailed, not on the 

errors contained in the challenged exhibit. Upon our review 

of this record, which contains disputed evidence, we cannot 

say that the trial court, as the trier of fact, erred by 

accepting Stanley Construction’s explanation of the errors 

contained in the challenged exhibit.*

 *

 During a colloquy between counsel at trial, Stanley 

Construction’s counsel offered to make certain stipulations 

if Cardinal’s counsel could identify mathematical errors. 

The record is devoid of a stipulation of any figures which 
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IX. 

 Cardinal argues that the trial court erred by failing 

to grant judgment on its counterclaim. Cardinal contends 

that the undisputed evidence adduced at trial demonstrated 

that it made overpayments to Stanley Construction in the 

amount of $87,346.67 and that Cardinal is entitled to 

repayment of those funds. The trial court, however, 

implicitly held that the monies that Cardinal purportedly 

overpaid were actually payments that Cardinal made to 

Stanley Construction for the additional work that Stanley 

Construction had performed. This is a factual issue which 

was resolved by the trial court, and we cannot say, based 

upon the evidence of record, that the trial court was 

plainly wrong. 

X. 

 For the foregoing reasons, the judgment of the trial 

court will be affirmed. 

Affirmed. 

 

would form the basis for any credits or deductions related 

to the alleged errors.