Green Quarries, Inc. v. Raasch, WD

Citation676 S.W.2d 261
Decision Date31 July 1984
Docket NumberNo. WD,WD
PartiesGREEN QUARRIES, INC., Appellant, v. Ernie W. RAASCH and Emelia F. Raasch, Respondents. 33356.
CourtCourt of Appeal of Missouri (US)

Kenneth J. Berra, Richmond, for appellant.

P. Wayne Kuhlman, Liberty, for respondents.

Before TURNAGE, C.J., SOMERVILLE, P.J., and CLARK, MANFORD, KENNEDY, NUGENT and LOWENSTEIN, JJ.

NUGENT, Judge.

Plaintiff Green Quarries, Inc., a subcontractor, filed its third amended petition, a petition in quantum meruit, attempting to enforce a mechanic's lien on real property owned by defendants Ernie and Emelia Raasch under a theory of unjust enrichment. The trial court granted the defendant owners' motion to dismiss for failure to state a claim upon which relief could be granted, and the plaintiff subcontractor appeals this dismissal. We affirm.

The scope of review for a motion to dismiss requires an examination of the pleadings, allowing them their broadest intendment, treating all facts alleged as true, construing the allegations favorably to plaintiff, and determining whether upon that basis the petition invokes principles of substantive law. Shapiro v. Columbia Union National Bank and Trust Co., 576 S.W.2d 310, 312 (Mo.1978) (en banc). Thus, a pleading will not be adjudged insufficient if the allegations of the petition, accorded a reasonable and fair intendment, state a claim which can call for the invocation of principles of substantive law which may entitle the plaintiff to relief. Porter v. Crawford & Co., 611 S.W.2d 265, 266 (Mo.App.1980). But a motion to dismiss on the ground that the petition fails to state a cause of action is well taken where the petition wholly fails to state a cause of action, that is, where the facts essential to a recovery are not pleaded. See Smith v. St. Louis County Softball Assoc., 623 S.W.2d 38 (Mo.App.1981); Fischer v. Vonck, 614 S.W.2d 26 (Mo.App.1981); J. Louis Crum Corp. v. Alfred Lindgren, Inc., 564 S.W.2d 544 (Mo.App.1978).

In substance, plaintiff's petition appears to allege the following:

Defendants, owners of certain real estate in Carrol County, entered into an agreement with the general contractor, Anchor Company, for improving the real estate. Plaintiff Green Quarries, as Anchor's subcontractor, sold rock and concrete to the general contractor on defendants' project and delivered those materials to the project for use in improvement of defendants' property. After delivery in January, 1980, Green Quarries unsuccessfully sought payment from Anchor. On May 13, 1980, Anchor filed for bankruptcy and Green Quarries filed a proof of claim against the general contractor in the bankruptcy action. On May 20, Green Quarries filed a lien in the circuit court of Carrol County on the real estate and improvements on defendants' property. Anchor was adjudged bankrupt, and its account due Green Quarries remains owing and unpaid. Green Quarries then demanded payment of the defendants on the account owed Green Quarries by the general contractor. The defendants did not pay Green Quarries.

Plaintiff Green Quarries informs us in its brief that its original petition and its first amended petition attempted to enforce the mechanic's lien which had been filed by plaintiff. The trial court dismissed the petition, but granted plaintiff an opportunity to amend. (We have no record, however, as to why those petitions did not state a claim.) Plaintiff then filed a second amended petition attempting to enforce the mechanic's lien. Defendants moved to dismiss the second amended petition for failure to state a claim, alleging that plaintiff's original mechanic's lien was improperly filed. The trial court heard and overruled plaintiff's motion to establish a lost document, and by agreement of the parties allowed plaintiff to file a third amended petition.

The theory of plaintiff's third amended petition was that the owners had been unjustly enriched. Paragraph eleven of the petition reads as follows:

That as a result of the failure of Anchor Company and Respondents to pay said account, Respondents have been unjustly enriched in that as a result of Petitioner's delivery of rock and concrete to Respondents heretofore described real estate for use in and which was used in the improvements of the heretofore described land, Respondents have enriched and improved the heretofore described land to the detriment of Petitioner.

The landowner defendants moved to dismiss the third amended petition for failure to state a claim or cause of action. Rule 55.27(a)(6), Missouri Rules of Civil Procedure. The trial court sustained the motion.

The defendant owners contend that the petition does not state facts sufficient to state a claim. Plaintiff subcontractor does not contend that the petition states facts sufficient to state a claim based either on an express or implied-in-fact contract between it and the defendant owners. Rather, the thrust of plaintiff's argument on appeal is that its petition pleaded facts essential to a recovery in quantum meruit under the doctrine of quasi-contract.

The doctrine of quasi-contract, also known as a contract implied in law, is based primarily on the principle of unjust enrichment. Donovan v. Kansas City, 352 Mo. 430, 175 S.W.2d 874, 884 (Mo.1943) (en banc); Dewey v. American Stair Glide Corp., 557 S.W.2d 643, 649 (Mo.App.1977); Rackers and Baclesse, Inc. v. Kinstler, 497 S.W.2d 549, 554 (Mo.App.1973); Rolla Lumber Co. v. Evans, 482 S.W.2d 519, 522 (Mo.App.1972); Annot., 62 A.L.R.3d 288, 292 (1975). Unlike a contract implied in fact, a contract implied in law is imposed, or created, without regard to the promise of the party to be bound. Dewey v. American Stair Glide, Corp., supra, at 649; Rackers and Baclesse, Inc. v. Kinstler, supra, at 554; Bennett v. Adams, 362 S.W.2d 277, 280-81 (Mo.App.1962); Annot., supra, at 293. The duty which engenders a quasi-contractual obligation is most often based upon the principle of unjust enrichment. Rackers and Baclesse, Inc. v. Kinstler, supra, at 554; Annot., supra, at 293. Unjust enrichment occurs where a benefit is conferred upon a person in circumstances in which retention by him of that benefit without paying its reasonable value would be unjust. Annot., supra, at 293; see also Dewey v. American Stair Glide Corp., supra, at 649; Rolla Lumber Co. v. Evans, supra, at 522. Thus, quantum meruit is a remedy for the enforcement of a quasi-contractual obligation. Laughlin v. Boatmen's Nat. Bank of St. Louis, 354 Mo. 467, 189 S.W.2d 974, 979 (1945); Rolla Lumber Co. v. Evans, supra, at 522.

Courts generally recognize that the essential elements of quasi-contract or contract implied in law are: (1) a benefit conferred upon the defendant by the plaintiff; (2) appreciation by the defendant of the fact of such benefit; and (3) acceptance and retention by the defendant of that benefit under circumstances in which retention without payment would be inequitable. Annot., supra, at 288. The most significant requirement is that the enrichment to the defendant be unjust, Paschall's, Inc. v. Dozier, 219 Tenn. 45, 407 S.W.2d 150, 154; Rolla Lumber Co. v. Evans, supra, at 522, that retention of the benefit be inequitable, Donovan v. Kansas City, supra, at 884; Rackers and Baclesse, Inc. v. Kinstler, supra, at 554.

In resolving the issue whether a landowner has been unjustly enriched by a subcontractor's improvements on the owner's real estate, the courts have repeatedly looked to whether the landowner has already paid the general contractor the amount due the general contractor under their express contract. Seegers v. Sprague, 70 Wis.2d 997, 236 N.W.2d 227, 231 (1975); Guldberg v. Greenfield, 259 Iowa 873, 146 N.W.2d 298, 305 (1966); Superior Plumbing Co., Inc. v. Tefs, 27 Wis.2d 434, 134 N.W.2d 430 (1965); Cohen v. Delmar Drive-In Theatre, Inc., 46 Del. 427, 84 A.2d 597, 598 (1951); Rackers and Baclesse, Inc. v. Kinstler, supra, at 554; Costanzo v. Stewart, 9 Ariz.App. 430, 453 P.2d 526, 527 (1969); Rogers v. Whitson, 228 Cal.App.2d 662, 39 Cal.Rptr. 849, 857 (1964). If the owner has indeed paid the general contractor for the materials, the owner's retention of them without further payment has been found not to constitute unjust enrichment. Seegers v. Sprague, supra; Guldberg v. Greenfield, supra; Superior Plumbing Co., Inc. v. Tefs, supra; Cohen v. Delmar Drive-In Theatre, Inc., supra; Rackers and Baclesse, Inc. v. Kinstler, supra; and Rogers v. Whitson, supra. Although the subcontractor may remain unpaid and thus suffer detriment, equity will not require the owner to pay twice. Superior Plumbing Co., Inc. v. Tefs, supra, at 433; see also Rackers & Baclesse, Inc. v. Kinstler, supra, at 554.

In Superior Plumbing Co. v. Tefs, supra, plaintiff subcontractor furnished materials and services on realty owned by the defendant. The plaintiff subcontractor brought suit against the defendant owner on an implied contract theory. As in this case, the plaintiff alleged that he had not been paid. The appellate court, however, reversed the trial court's order denying defendant's motion to dismiss. The complaint did not contain an affirmative averment that the defendant owner had not paid the general contractor. Therefore, the court found that the complaint allowed for the inference that the owner had indeed paid the general contractor for the benefit conferred. Thus, the court concluded that the complaint did not set forth facts sufficient to constitute a cause of action for unjust enrichment. Id. at 432.

Green Quarries contends on appeal that it was not required to plead or prove that the defendant owners never paid the general contractor. Plaintiff argues that payment is an affirmative defense to be pleaded and proved by the defendant owners. In a claim based on unjust enrichment, plaintiff's contention cannot be correct. Payment or non-payment by the owner is a factor which determines whether the petition alleges the most important element for a recovery based on...

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