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).
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.
Restatement, Contracts § 357(f). See also 5 Williston on Contracts § 1475, notes 2, 5 (Rev.Ed.); Dermott v. Jones, 23 How. 220, 64 U.S. 220, 233, 16 L.Ed. 442; American Surety Co. of New York v. United States, 9 Cir. 1966, 368 F.2d 475; Power-Matics, Inc. v. Ligotti, 1963, 79 N.J. Super. 294, 191 A.2d 483. Here Siosa suffered damages but benefitted from Wilmar's partial performance of the contract. In these circumstances the equities require that the damages should be off-set against the value of the benefit to Siosa.
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.
In St. Paul Chase Corp. v. Manufacturers Life Ins. Co., 262 Md. 192, 278 A.2d 12 (Ct.App. 1971), the court was confronted with substantially the same issue in a similar factual setting as presented here, and referring to the mortgage loan commitment commented as follows: See Power-Matics, Inc. v. Ligotti, 79 N.J. Super. 294 (App.Div. 1963); Jardine Estates v. Donna Brook Corp., 42 N.J. Super. 332 (App.Div. 1956). Also, 13 Am. Jur.2d, Building and Construction Contracts, § 43; 76 A.L.R.2d 815, § 5.
Statev. Metalski, 116 N.J.L. 543, 546 (E. A. 1936); Power-Matics, Inc. v. Ligotti, 79 N.J. Super. 294, 301 (App.Div. 196 3). We do not regard the statement of the witness as being contemptuous in any sense.
The acceptance of valuable services performed under circumstances justifying the conclusion that it would be inequitable to allow the recipient to enjoy the benefit without compensation therefore supports relief by way of quantum meruit, quasi-contract, constructive trust or implied contract, as may be appropriate if no express contract exists. Our rules permit the employment within the pleadings of any or, in the alternative, all of these theories of relief. R. 4:5-6 and R. 4:5-7; see also, Power-Matics, Inc. v. Ligotti, 79 N.J. Super. 294, 304 (App.Div. 1963). Defendant opposes all such theories of relief by contending that the cause of action itself contravenes New Jersey's "Heart Balm" Act, N.J.S.A. 2A:23-1 et seq., which specifically bars any suit based upon a breach of promise to marry.
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.
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.
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.