The court relied on a passage from a decision of the New Jersey Appellate Division stating that " quasi-contractual obligations arise independently of the parties' intent or the existence of a contract." Power-Matics Inc. v. Ligotti, 79 N.J. Super. 294, 306, 191 A.2d 483 (App. Div. 196 3). We believe the district court's reliance on this statement was misplaced and that New Jersey law is to the contrary: recovery under unjust enrichment may not be had when a valid, unrescinded contract governs the rights of the parties.
However, a common thread runs throughout its application where liability has been successfully asserted, namely, that the plaintiff expected remuneration from the defendant, or if the true facts were known to plaintiff, he would have expected remuneration from defendant, at the time the benefit was conferred. See Rabinowitz v. Mass. Bonding Insurance Co., 119 N.J.L. 552 ( E. A. 1937); Power-Matics, Inc. v. Ligotti, 79 N.J. Super. 294 ( App. Div. 1963); Shapiro v. Solomon, 42 N.J. Super. 377 ( App. Div. 1956).
In Van Dusen Aircraft Supplies, Inc. v. Terminal ConstructionCorp., 3 N.J. 321, 70 A.2d 65 (1949), this Court, citing Feeney approvingly, stated in dicta that the "rule of damages where a building is substantially completed, but is defective in some particulars, is the cost of making good the omitted or defective work." Id. at 329, 70 A.2d 65. AccordPower-Matics, Inc. v. Ligotti, 79 N.J. Super. 294, 191 A.2d 483 (App.Div. 1963); Winfield Mut. Hous. Corp. v. MiddlesexConcrete Prods. and Excavating Corp., 39 N.J. Super. 92, 120 A.2d 655 (App.Div. 1956); Amerada Hess Corp. v. Quinn, 143 N.J. Super. 237, 362 A.2d 1258 (Law Div. 1976). C.
The parties are bound by their agreement, and there is no ground for implying a promise as long as a valid unrescinded contract governs the rights of the parties. Van Orman v. American Insurance Co., 680 F.2d 301, 310-11 (3d Cir. 1982); C.B. Snyder Realty Co. v. National Newark Essex Banking Co., 14 N.J. 146, 162-63, 101 A.2d 544, 553 (1953); Moser v. Milner Hotels, Inc., 6 N.J. 278, 280, 78 A.2d 393, 394 (1951). But see Power-Matics, Inc. v. Ligotti, 79 N.J. Super. 294, 306, 191 A.2d 483, 490 (1963). Under those principles Transfer's claim for quasi-contractual liability based on unjust enrichment must fail as a matter of law.
See Cartel Capital Corp. v. Fireco, 81 N.J. 548, 564, 410 A.2d 674 (1980); See Farese v. McGarry, 237 N.J. Super. 385, 389, 568 A.2d 89 (App.Div. 198 9). Plaintiff correctly contended before the trial court that, if the jury found that there was no valid contract, the jury could then consider whether plaintiff nonetheless might recover for unjust enrichment, a cause of action that does not depend on there being an express contract. See Power-Matics, Inc. v. Ligotti, 79 N.J. Super. 294, 306, 191 A.2d 483 (App.Div. 1963) (plaintiff may attempt to prove both unjust enrichment and breach of contract without also showing rescission of the alleged contract). Here, the critical inquiry is whether plaintiff established a sufficient factual basis for submitting the contract claim to the jury.
In order to overturn the verdict of the jury in this case, we must say that there is no evidence upon which reasonable minds might differ in finding that the failure of performance on behalf of the plaintiff was substantial. See Little Thompson Water Ass'n v. Strawn, 466 P.2d 915, 917 (Colo. 1970); Power-Matics, Inc. v. Ligotti, 79 N.J. Super. 294, 191 A.2d 483, 488 (App.Div. 1963). Nordin advances the position that the evidence of failure to substantially perform was inherently unbelievable, and that "it is a hopeless and formidable task to go to the record and argue against the vague testimony of the hometowners and nonengineers" who testified with regard to deficiencies in the system.
(3) The measure of the defendant's benefit from the plaintiff's part performance is the amount by which he has been enriched as a result of such performance unless the facts are those stated in Subsection (1b), in which case it is the price fixed by the contract for such part performance, or, if no price is so fixed, a ratable proportion of the total contract price. That section was adopted by the Appellate Division in Power-Matics, Inc. v. Ligotti, 79 N.J. Super. 294, 306-07, 191 A.2d 483 (1963), in which the plaintiff sought recovery for its part performance after it had breached a contract to build a porch. The court concluded that the "plaintiff should have been allowed to offer evidence to establish, if it could, a right to recover the amount of the benefit it conferred upon defendants in excess of the harm it had caused defendants by its own breach — rather than be compelled to suffer a complete forfeiture."
Therefore, essential elements of contracts "implied in fact" are mutual agreement, and intent to promise, but the agreement and the promise have not been made in words and are implied from the facts. Power-Matics, Inc. v. Ligotti, 79 N.J. Super. 294, 191 A.2d 483 (1963); St. Paul Fire M. Ins. Co. v. Indemnity Ins. Co. of No. America, 32 N.J. 17, 158 A.2d 825 (1960); St. John's First Lutheran Church v. Storsteen, 77 S.D. 33, 84 N.W.2d 725 (1957). Compare Arden Engineering Co. v. E. Turgeon Constr. Co., 97 R.I. 342, 347, 197 A.2d 743, 746, and George Spalt Sons, Inc. v. Maiello, 48 R.I. 223, 226, 136 A. 882, 883.
Our decisions have permitted a defaulting contractor to recover the reasonable value of its services, less a fair allowance to the owner for minor defects or omissions, where the breach was not willful and the deficiency in its performance was not so serious as to deprive the owner of the intended use of the property. See Power-Matics, Inc. v. Ligotti, 79 N.J. Super. 294, 303, 191 A.2d 483 (App.Div. 1963); Jardine Estates, Inc. v. Donna Brook Corp., 42 N.J. Super. 332, 337-38, 126 A.2d 372 (App.Div. 1956). Thus, a contractor who commits a breach after he has rendered part performance must make the injured party whole by payment of compensatory damages, but the "part performance rendered . . . may be much more valuable to the defendant than the amount of the injury caused by the breach[,]" and in such case, to allow the injured party to retain the benefit without making restitution is "the enforcement of a penalty or forfeiture against the contract-breaker."
In fact, the obligations are sometimes imposed even against clear expressions of dissent. Power-Matics, Inc. v. Ligotti, 79 N.J. Super. 294 (App.Div. 1963). Restitution and unjust enrichment are both quasi-contractual in nature.