770 P.2d 964
CSC 87-0858; CA A48888Oregon Court of Appeals.Argued and submitted January 18, 1989
Reversed March 22, 1989
Appeal from the District Court, Umatilla County, Richard Courson, Judge.
Dale L. Smith, Hermiston, argued the cause for appellants. With him on the brief was Reynolds Smith, P.C., Hermiston.
Brant Medonich, Pendleton, argued the cause for respondent. With him on the brief was Kottkamp O’Rourke, Pendleton.
Before Joseph, Chief Judge, and Riggs and Edmonds, Judges.
EDMONDS, J.
Reversed.
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EDMONDS, J.
Defendants appeal from a judgment after a jury trial, assigning as error the trial court’s denial of their motion to dismiss for failure to state a claim. ORCP 21A. We reverse.[1]
We accept the facts pled by plaintiff as true. Sager v. McClenden, 296 Or. 33, 35, 672 P.2d 697 (1983). Plaintiff alleged that defendants entered into a construction contract with a contractor to build a barn on defendants’ property, that plaintiff supplied raw materials to the contractor for use in construction of the barn, that after partial completion of the barn the contractor ceased work and that defendants did not pay for the materials. The issue is whether the allegations suffice to state a claim for “unjust enrichment.”
In order to state a claim for unjust enrichment, a complaint must contain allegations showing that the “enrichment” was “unjust.” The mere fact that a benefit was conferred is insufficient. Porter Const. Co. v. Berry, 136 Or. 80, 91, 298 P. 179 (1931); Restatement Restitution § 1, comment c at 13 (1927). On facts similar to those alleged by plaintiff, a majority of courts have held that, before recovery can be obtained against the landowner, the furnisher of the materials must have exhausted all remedies against the contractor and still remain unpaid. See, e.g., Idaho Lumber, Inc. v. Buck, 109 Idaho 737, 710 P.2d 647 (1985); Paschall’s, Inc. v. Dozier, 291 Tenn. 45, 407 S.W.2d 150 (1966); see also Annot., 62 ALR3d 288 (1975).
We adopt the majority rule and hold that, under facts such as pled here, a material element that must be alleged and proved for a claim of unjust enrichment to succeed is that the remedies against the contractor were exhausted. The policy underlying the notice provisions of ORS 87.023[2] supports our holding. Those provisions are intended to provide notice to a landowner that the land may be subject to a construction lien by a furnisher of materials and provide a remedy to a furnisher
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of materials in plaintiff’s circumstances.[3] No direct contractual relationship existed between the parties here. For these reasons, a furnisher of materials must exhaust all remedies against the contractor before the “enrichment” can be “unjust.” Plaintiff failed to allege the necessary facts to state a claim for unjust enrichment.[4]
Reversed.
“A statute that is particularly addressed to situations of unjust enrichment may also preclude a claim to restitution, though the claim would otherwise be maintainable * * * by providing remedies for certain cases of the type it deals with, the statute may be held to foreclose additional or more extensive relief in those cases, or to foreclose restitution in other cases of the same type.”
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