Dissenting Opinion by
Me. Justice Musmanno:I believe an injustice is being done the defendant in this case. The lower court awarded the plaintiff *563$42,283.29, for extras, but the record shows that only $900 of such extras was earned on two signed change orders agreed to in writing. Yet the agreement specifically provides that, except in an emergency endangering life or property, no claim for an addition to the contract price was to be valid unless the work was done pursuant to the owner’s written, signed order, and after written notice given by the contractor before proceeding with the work. I am disturbed that the Majority could have reached its conclusion when the record shows that there toas no such writing.
Even the plaintiff did not contend that the requirement in writing was waived by agreement of the parties, as in Wagner v. Graciano Construction, 390 Pa. 445, relied upon by the Majority. The most that the plaintiff has shown are oral modifications of the work called for under the contract, which is exactly what is prohibited by the solemn agreement entered into between the parties. The oral modification certainly cannot be used as evidence of a waiver, for otherwise, a requirement of writing would become meaningless. This Court clearly pointed out this fundamental proposition of law in C.I.T. Corp. v. Jonnet, 419 Pa. 435, 438, where this writer, speaking for the Court, said: “Nowhere, however, do the defendants allege cancellation by the plaintiff of the express term of the original conditional sale contract that £no waiver or change in this contract or related note, shall bind such assignee (in this ease, the plaintiff) unless in writing signed by one of its officers.’
“This specific condition stands as a stone wall in the path of the defendants’ contention. However, they believe they have found a way around this formidable barrier by citing the case of Kirk v. Brentwood M. H., Inc., 191 Pa. Superior Ct. 488, 492 where the Superior Court said that ‘Even where the written contract pro*564Mbits a non-written modification, it may be modified by subsequent oral agreement.’ TMs is true but there must first be a waiver of the requirement which has been spelled out in the contract. Otherwise, written documents would have no more permanence than writings penned in disappearing ink. If this, the defendants’ argument, were to prevail, contractual obligations would become phantoms, solemn obligations would run like pressed quicksilver, and the whole edifice of business would rest on sand dunes supporting pillars of rubber and floors of turf. Chaos would envelop the commercial world.”
The lower court, in reaching its conclusions, relied in part on a certain letter, but this letter, by its reference to one of the signed change orders, clearly refutes rather than supports any agreement to cancel out the requirement of writing. Nor was there sufficient evidence to support the award for the extras. Pizzuti, plaintiff’s secretary-treasurer and only full-time officer, testified that the extra costs were incurred in the amounts shown on change order forms which were not signed by the defendant and which were prepared by the plaintiff away from the job site and presented for the first time during court conciliation attempts. The evidence failed to show that the work charged for was actually performed and that an extra cost was incurred thereby, nor was there a showing of the exact amount involved. Further, there was no evidence as to what labor and material were used in excess of what was required under the original plans. There was no breakdown whatever with accompanying proof to support the plaintiff’s claim for extras or that its figure had awarded the defendant proper credit for the items charged in the original contract and later changed and charged as extras.
*565It was the plaintiff’s duty to support its claim for extras with competent evidence which in my opinion it wholly failed to produce. I cannot, therefore, go along with the Majority’s conclusions as to recoveries to be permitted. And I am perplexed as to why the Majority denies the defendant credit for the cost of completing the work left unfinished by the plaintiff. The court below held that the figure of $15,564, testified to by defendant’s expert, did not take into account the 1962 rates of labor and material which were 15% lower; but even if the $15,564 was reduced by 15%, the defendant would still be entitled to a $13,229 credit.
As to damages due the defendant for the plaintiff’s five months’ delay in the completion of the motel, Arnold I. Levine, CPA, resident partner of J. K. Lasser and Company, testified that the delay amounted to $456.67 a day or a loss of not less than $69,869. Pizzuti claimed excusable delays of 59 days and the architect, Roberts, testified to a delay of 76 days. Therefore, even if the 76 days are deducted from the $68,869 (which figure was not contradicted by any testimony to the contrary) defendant would still be entitled to $35,620.-26 less the $5,000 agreed to as delay damages in the supplemental agreement, or a net of $30,620.26.
Though the credibility of witnesses is ordinarily a matter left within the chancellor’s determination, I cannot escape concluding that the chancellor in this case abused the discretion vested in him when he chose to grant such a large award to the plaintiff corporation on the testimony of its principal officer who had given to the court admittedly forged documents and testified falsely with regard to those documents. However, as before stated, even if his testimony were entitled to some probative value, it was insufficient to support the plaintiff’s claims for extras and to defeat *566the defendant’s credit for unfinished work and delay damages.
Accordingly, I would only allow the plaintiff corporation to recover the balance due on the original contract of $91,590 less undisputed credits of $6,113.75 and less $13,229 credit for unfinished work and less $30,620.26 as damages for the delay in making the motel available to defendant for use, or a total of $41,626.99. It is my opinion • that the plaintiff wholly failed to support its claim for extra work by credible, competent and sufficient evidence and the burden of disproving extras should not have been placed upon the defendant as in effect it was. The defendant’s evidence, to the contrary, in support of its claim for credit for unfinished work and for damages for the delay in having the motel available for occupancy, was credible, competent and sufficient in support thereof. Thus I believe it was a gross abuse of discretion on the part of the court below to deny the defendant such credits. Where the court was too lenient with the plaintiff, it was too strict with the defendant.
Thus I would modify the decree of the court below in accordance with what I have here written.
Mr. Chief Justice Bell joins in this dissenting opinion.