BOOE v. SHADRICK

This is an action in which the plaintiff sought damages for breach of three separate contracts. One of the claims was settled before trial. In each of the other claims the plaintiff alleged he was an electrical contractor who had made a verbal contract with the defendants to furnish labor, material and equipment and to install the electrical system in a project for the defendants. One of the projects was known as Wilkes Towers and the other was known as Sheraton Towers. The plaintiff alleged that on each project the agreement was that the work would be done and material furnished on the basis of cost plus ten percent. The plaintiff alleged that he was owed $222,058.73 on the Wilkes Towers project of which $195,514.06 had been paid, leaving a balance due of $26,544.67. The plaintiff alleged that he was owed $362,534.90 for the Sheraton Towers project of which $314,523.00 had been paid, leaving a balance due of $48,011.88. For each claim the plaintiff alleged an alternative claim for unjust enrichment.

The defendants filed an answer and counterclaim in which they alleged that for each of the projects the parties had entered into a contract which the plaintiff had breached by failing to complete to the damage of the defendants. The defendants prayed for damages against the plaintiff.

The plaintiff's evidence showed that the plaintiff and the defendants agreed the plaintiff would furnish the materials and labor and would install the electrical systems on the two projects and would be paid on a cost plus basis. The defendants made payments totaling $195,514.06 for the Wilkes Towers project and $314.523.02 for the Sheraton Towers project. The work was approximately 95% complete on the two projects when the defendant refused to make further payments. The plaintiff completed each project. The bookkeeper for the plaintiff testified material and labor costs on the Wilkes Towers project totaled $200,020.03 to which the plaintiff added ten percent for overhead making the total $222,058.73 of which the defendants had paid $195,514.06 leaving a balance due of $26,544.67. She testified that on the Sheraton Towers project the labor and material costs were $329,577.19 to which overhead costs of $32,957.71 had been added for a total of $362,534.90. The defendants had paid $314,523.02 of this amount, leaving a balance due of $48,011.88.

The defendants' evidence was that the plaintiff had agreed to do both projects for a fixed amount. The plaintiff had breached the contract by not completing either of the projects causing substantial damage to the defendants.

The court submitted issues to the jury as to whether there was a verbal cost plus contract and whether there was a verbal contract to do the work and furnish the materials for a fixed fee for each project. The jury answered these issues in the negative. The court also submitted issues for each project as to whether the plaintiff had furnished labor and material under such circumstances that the defendant should be required to pay for them. The jury answered these two issues in the affirmative. The jury awarded $26,000.00 in damages for the Wilkes Towers project and $40,500.00 in damages for the Sheraton Towers project.

The court granted the defendants' motion for judgment notwithstanding the verdict pursuant to N.C.G.S. 1A-1, Rule 50(b)(1) and entered a judgment for the defendants. The plaintiff appealed to the Court of Appeals which reversed the trial court and held that there was sufficient evidence on the claim for unjust enrichment to enter a verdict for the plaintiff. The Court of Appeals held, however, that the plaintiff did not present sufficient evidence to support a judgment for damages and remanded the case for a judgment of nominal damages. Judge Phillips dissented and the plaintiff appealed to this Court.

WEBB, Justice.

No question has been raised on this appeal as to the plaintiff's having introduced sufficient evidence to establish a claim for unjust enrichment against the defendants. The sole question on this appeal is whether there is sufficient evidence to support an award of damages by the jury. We hold there was sufficient evidence and reverse the Court of Appeals.

The Restatement of Restitution 1 lays down the general principle that "[a] person who has been unjustly enriched at the expense of another is required to make restitution to the other." In order to establish a claim for unjust enrichment, a party must have conferred a benefit on the other party. The benefit must not have been conferred officiously, that is it must not be conferred by an interference in the affairs of the other party in a manner that is not justified in the circumstances. The benefit must not be gratuitous and it must be measurable. See Britt v. Britt, 320 N.C. 573, 359 S.E.2d 467 (1987) and E. Allan Farnsworth, Contracts 2.20. In Wells v. Foreman, 236 N.C. 351, 72 S.E.2d 765 (1952), we said that the defendant must have consciously accepted the benefit. A claim of this type is neither in tort nor contract but is described as a claim in quasi contract or a contract implied in law. A quasi contract or a contract implied in law is not a contract. The claim is not based on a promise but is imposed by law to prevent an unjust enrichment. If there is a contract between the parties the contract governs the claim and the law will not imply a contract. Concrete Co. v. Lumber Co., 256 N.C. 709, 124 S.E.2d 905 (1962). Our cases hold that the measure of damages for unjust enrichment is the reasonable value of the goods and services to the defendant. Johnson v. Sanders, 260 N.C. 291, 132 S.E.2d 582 (1963); Environmental Landscape Design v. Shields, 75 N.C. App. 304, 330 S.E.2d 627 (1985); Hood v. Faulkner, 47 N.C. App. 611, 267 S.E.2d 704 (1980); Harrell v. Construction Co., 41 N.C. App. 593, 255 S.E.2d 280 (1979), affirmed, 300 N.C. 353, 266 S.E.2d 626 (1980).

The question posed by this appeal is whether there is sufficient evidence to support a finding by the jury that the reasonable value of the goods and services to the defendants for which the plaintiff has not been paid is $26,000.00 for the Wilkes Towers project and $40,500.00 for the Sheraton Towers project. In determining this question we take into account the finding of the jury that there was not a contract between the parties. This means the plaintiff furnished material and labor to the defendants for a substantial period without a contract and the defendants paid for it. This is some evidence of the value of the goods and labor furnished before the defendants stopped paying. The evidence was undisputed that the plaintiff furnished a substantial quantity of materials and labor after the last payment by the defendants. This was obviously of value. The plaintiff's bookkeeper testified to the total billing to the defendants and to the amount paid and unpaid by the defendants. We hold that her testimony as to what was billed for the materials and labor and the evidence of a payment for a part of it at the billed rate is evidence sufficient for the jury to find the reasonable value to the defendants of the remaining goods and services for which bills were submitted and no payment was made. This case is somewhat analogous to Environmental Landscape Design v. Shields, 75 N.C. App. 304, 330 S.E.2d 627, in which our Court of Appeals held that the plaintiff's bill together with the hourly rate charged by another landscape designer who worked on the job were sufficient to establish the reasonable value of the plaintiff's services. In this case we have the plaintiff's bill and the previous payment to the plaintiff in accordance with the bill.

The Court of Appeals has held that an invoice or bill alone is not sufficient evidence to support a jury award as to the reasonable value of services. Harrell v. Construction Co., 41 N.C. App. 593, 255 S.E.2d 280. We expressly declined to rule on that question in Harrell v. Construction, 300 N.C. 353, 266 S.E.2d 626. It is not necessary for us to decide this question in this case because there is more evidence than the amount billed to the defendants.

In a cross assignment of error, the defendants ask that if we hold there was sufficient evidence of damages to support the jury award, that we exercise our discretion pursuant to N.C.G.S. 1A-1, Rule 50(d) and order a new trial on the damage issue. They say that because the court reserved a ruling on their motion for directed verdict made at the close of the plaintiff's evidence, they did not offer evidence of unjust enrichment for fear of making the plaintiff's case for him. The defendants argue they should now be allowed to use this evidence. We do not believe the trial tactics employed by the defendants is sufficient reason for us to exercise our discretion and order a new trial.

For the reasons stated in this opinion, we reverse the order of the Court of Appeals and remand the case with instructions that it be remanded to superior court for the entry of a judgment in accordance with the verdict of the jury.

Reversed and remanded.