Preexisting Duty. New England Rock Services, Inc, agreed to work as a subcontractor on a sewer project on which Empire Paving, Inc, was the general contractor. For drilling and blasting a certain amount of rock, Rock Services was to be paid 29 per cubic yard or on a time-and-materials basis, whichever was less. From the beginning, Rock Services encountered problems. The primary obstacle was a heavy concentration of water, which, according to the custom in the industry, Empire should have controlled but did not. Rock Services was compelled to use more costly and time-consuming methods than anticipated, and it was unable to complete the work on time. The subcontractor asked Empire to pay for the rest of the project on a time-and-materials basis. Empire signed a modification of the original agreement. On completion of the work, Empire refused to pay Rock Services the balance due under the modification. Rock Services filed a suit in a Connecticut state court against Empire. Empire claimed that the modification lacked consideration and was thus not valid and enforceable. Is Empire right? Why or why not?
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