Summary
In Kelley, therefore, as in Nelson, there was a relationship between the party procuring the work and the party from whom recovery was sought, or an intermingling of their interests such that the services were provided for the benefit of both parties.
Summary of this case from Puttkammer v. MinthOpinion
June 5, 1957 —
June 26, 1957.
APPEAL from an order of the circuit court for Racine county: ELMER D. GOODLAND, Circuit Judge. Affirmed.
For the appellant there was a brief by Potter Smith of Racine, and oral argument by Louis D. Potter.
For the respondent there was a brief by La France, Thompson, Greenquist, Zahn Dye of Racine, and oral argument by John F. Thompson.
Prior to October 17, 1955, Kelley Lumber Company began action against Ruth Woelfel to recover $3,587.13. An amended complaint was served September 5, 1956, and defendant demurred on the ground of failure to state a cause of action.
The following facts appear from the amended complaint:
Defendant is the widow of William Woelfel. William had been a carpenter and had for many years purchased building supplies from plaintiff on open account. During the last five years the balance of the account was never less than $1,300 and at times exceeded $7,000.
A certain lot "was owned jointly by the defendant and the said William Woelfel, that is to say, each owned an undivided one-half interest therein." During 1954 plaintiff supplied building materials at William's request which were used to construct a residence on the lot. Defendant knew of the use of plaintiff's materials and such use greatly increased the value of the property. The plaintiff also alleged that defendant "assented" to the use and that the materials were "accepted by the defendant."
On January 5, 1955, defendant and her husband sold the residence and deposited the net proceeds ($6,220.07) in a joint checking account which had a balance of only $33 prior to the sale. The balance then due plaintiff for materials used in the erection of the residence was $3,587.13. On January 13, 1955, William Woelfel died.
The plaintiff further alleged in substance that the defendant has been unjustly enriched to the extent of the value of the materials used in the residence, the proceeds of the sale having passed to the defendant as the surviving owner of the joint bank account.
On December 3, 1956, the circuit court overruled the demurrer and defendant appealed.
The circuit court concluded that the facts alleged in the complaint include the essential elements of quasi contract as set forth in Nelson v. Preston (1952), 262 Wis. 547, 55 N.W.2d 918. These are listed (p. 550):
"(1) A benefit conferred upon the defendant by the plaintiff;
"(2) Appreciation by the defendant of the fact of such benefit;
"(3) Acceptance and retention by the defendant of such benefit, under circumstances such that it would be inequitable to retain the benefit without payment of the value thereof."
In Nelson v. Preston, the plaintiff furnished services and materials for the construction of houses on lots owned by defendant. The services and materials were ordered by defendant's son, who was not an owner of the property and was not the agent of defendant, but had some interest in the houses under construction. The defendant benefited by the increase in value of her interest in the property. This court decided that plaintiff was entitled to recover from defendant because it was inequitable for her to retain the benefit without payment.
Liberally construing the allegations of the complaint now before us, it alleges a knowing acceptance and retention by defendant of a valuable benefit without payment. It meets the tests above quoted sufficiently for the purposes of a complaint.
At this stage, we do not know what the proof will show as to the extent of defendant's knowledge of the use of plaintiff's materials, nor the manner of her alleged acceptance and assent. We cannot anticipate what further facts may be pleaded and established by defendant to show that the transactions and relationships of the parties were such that defendant's retention of the benefits is not inequitable. All that we now hold is that plaintiff has stated facts which entitle it to service of an answer and trial of the issues so made.
By the Court. — Order affirmed.