Commercial Fixtures & Furnishings, Inc. v. Adams

564 P.2d 773, 1977 Utah LEXIS 1142

• Court: Utah Supreme Court
• Decided: May 13, 1977
• Docket: 14700
• Status: Published

Opinions

HALL, Justice:

This is an appeal from a summary judgment of no cause of action rendered by the district court.

Defendant, Eldon Adams, is the owner of real property located at 1140 South State Street, Orem, Utah. He entered into a written lease with Great Outdoors, Inc. under the terms of which the lessee agreed to complete such improvements in and upon said property as its business needs might require and to pay and discharge all costs and expenses incident thereto to the end that no liens would be placed on the leased property. Great Outdoors, Inc. thereafter contracted with plaintiff for the purchase of materials which were ultimately furnished and incorporated into the building on the leased premises. The appellant was not privy to that agreement. Great Outdoors subsequently defaulted in the performance of the covenants of said lease and by court judgment the lease was terminated and the property restored to defendant. Plaintiff filed no lien against the lessee’s interest in the property and the time limited for filing has expired.

Plaintiff has never instituted suit against the lessee and brought this action directly against the defendant on a theory of unjust enrichment.

The foregoing recitation of facts are those stipulated to by the parties at the time they presented their respective motions for summary judgment to the trial court.

This appeal may be disposed of by the application of some very elementary principles of law. As a general rule, a tenant’s creditors have no greater right to charge the land with the value of improvements or repairs than the tenant would have¹ and here the tenant had no such right having contracted it away.

The right of plaintiff to recover for the goods incorporated into defendant’s real property must be based upon an agreement, either express or implied, and the stipulated facts are clear that none existed. Plaintiff placed no reliance at all on the credit of defendant and the lease agreement specifically imposed upon the lessee the sole obligation of payment. A case in point is Howard v. Societa Di Unione E Beneficenza Italiana, et al., 62 Cal.App.2d 842, 145 P.2d 694.

The mere fact that a third person benefits from a contract between two others does not make such third person liable in quasi-contract, unjust enrichment, or restitution. See 66 Am.Jur.2d 960. There must be some misleading act, request for services, or the like, to support such an action. Mere failure of performance by one of the contracting parties does not give rise to a right of restitution.

It is also noted that there was an express contract between plaintiff and the lessee for the furnishing of materials, and when an express agreement exists one may not be implied.²

The action brought by plaintiff is one in equity and brought without any attempt to exhaust any legal remedies available. Also, the stipulated facts are that plaintiff has brought no suit against the lessee nor did he initiate any action to enforce a mechanic’s lien, if any he had. As a consequence, such lien right was lost by passage of time. Nor has plaintiff shown any legal and sufficient excuse for his inaction against the lessee.

The authorities cited by plaintiff are distinguishable on the facts presented here and do not compel support of its position.

Judgment affirmed, Costs to defendant.

ELLETT, C. J., and WILKINS, J., concur.

1 . 49 Am.Jur.2d 702, Section 765, citing authorities.

2 . 66 Am.Jur.2d 948, Section 6, citing Verdi v. Helper State Bank, 57 Utah 502, 196 P. 225, 15 A.L.R. 641.