Siskron v. Temel-Peck Enterprises, Inc.

216 S.E.2d 441 (1975)

26 N.C. App. 387

Harry C. SISKRON, d/b/a City Plumbing Company v. TEMEL-PECK ENTERPRISES, INC., et al.

No. 7526SC217.

Court of Appeals of North Carolina.

July 2, 1975.

*444 Hamel, Cannon & Hamel, P.A., by I. Manning Huske and Reginald S. Hamel, Charlotte, for plaintiff.

Weinstein, Sturges, Odom, Bigger & Jonas, P.A., by John J. Doyle, Jr., Charlotte, for defendant.

CLARK, Judge.

When one person confers a benefit upon another which is not required by a contract either express or implied or a legal duty, the recipient thereof is often unjustly enriched and will be required to make restitution therefor. However, this rule is not the case where the person conferring the benefit is a volunteer or intermeddler or where the person conferring the benefit does so without affording the recipient an opportunity to reject the benefit. See D. Dobbs, Remedies, § 4.9 (1973). This latter principle called the "choice principle", does not apply, however, with absolute rigidity but yields at times to special situations cognizable in equity which override a defendant's right of free choice. Nevertheless, it has been said that:

"Where a plaintiff in the performance of his own duty incidentally confers a benefit on the defendant, it is usually held that restitution is not available. Thus, where one in possession of land hires the plaintiff to put an improvement on it, the fact that this inures to the benefit of the owner does not create liability to make restitution." Wade, Restitution for Benefits Conferred Without Request, 19 Vand.L.Rev. 1183, 1204 (1966).

Further,

"A person is ordinarily not required to pay for benefits which were thrust upon him with no opportunity to refuse them. The fact that he is enriched is not enough, if he cannot avoid the enrichment." Wade, Restitution for Benefits Conferred Without Request, 19 Vand.L. Rev. at 1198 (1966).

The concept of the "choice principle" finds cognizance in this State in Homes, Inc. v. Holt, 266 N.C. 467, 146 S.E.2d 434 (1966), wherein the plaintiff-contractor contracted with defendant's mother for the construction of a house upon a lot which was represented by the mother to be owned by her. As it turned out, the plaintiff was mistaken as to the ownership of the lot as it was actually owned by the defendant. The defendant thereafter refused to allow the plaintiff to remove the house from the lot and refused to pay for the improvement. It was held that ". . . where through a reasonable mistake of fact one builds a house upon the land of another, the landowner, electing to retain the house upon his property, must pay therefor . . .." Homes, Inc. v. Holt, supra, at 474, 146 S.E.2d at 439. As is apparent from the above case, the defendant had the "choice" of either allowing plaintiff to remove the house or retaining it. Having elected to retain it, equity required her to pay since she had the choice of returning the benefit conferred even though she could not reject the benefit in advance of its bestowal.

Applying these principles to the facts in the present case, we fail to discern that the defendant Belk was ever given an opportunity to either reject the benefits in advance of their bestowal or to return them after they had been conferred. Under the lease to Temel-Peck Enterprises, Inc., the lessee covenanted to ". . . keep and maintain the improvements, equipment, fixtures and furnishings in good repair", and ". . . make all necessary and appropriate repairs and replacements to the premises." Even though Belk was aware that repairs were being made, it was perfectly proper for him to assume that Temel-Peck was making them pursuant to its covenants in the lease and that the contractor was looking to the lessee for payment, which he in fact was. It would be unreasonable to place upon every lessor of substantial leasehold property the duty of policing every *445 expenditure made for repairs by a lessee who is required under the lease to make repairs. Under the circumstances, the defendant had no opportunity to reject the benefits conferred in advance.

The next question is whether defendant Belk had an opportunity to return in specie the benefits conferred prior to his reentry into the property in January 1972. The answer to this is simply in the negative as the plaintiff personally admitted that the improvements and repairs could not feasibly be removed without closing down the hotel.

We find no special circumstances present in this case which would override Belk's freedom of choice and coerce liability for the benefits conferred upon him. The plaintiff relies upon his good faith, reasonable belief that Temel-Peck was the owner, and Belk's inaction after the newspaper article previously referred to was published as grounds for liability. He further contends that the evidence that someone representing himself to be Belk's vice president told his agent that Temel-Peck owned the hotel is probative of an innocent misrepresentation by Belk. We fail, however, to see how the representations of an unidentified person amount to any kind of representation on Belk's part. Furthermore, there was no evidence whatsoever that Belk was ever aware of plaintiff's mistaken belief as to the ownership of the property. In any event, it is not clear whether ownership in Belk as opposed to Temel-Peck would have made any difference to the plaintiff when he originally formed the contract with Temel-Peck. Under these circumstances, the general rule of equity applies and the defendant Belk, having had no suitable opportunity to accept or decline the benefits, could not be held liable in restitution for the benefits conferred. See generally, LaChance v. Rigoli, 325 Mass. 425, 91 N.E.2d 204 (1950); Chatfield v. Fish, 126 Conn. 712, 10 A.2d 754 (1940); and Kennedy v. Nelson, 37 Ala.App. 484, 70 So. 2d 822 (1954).

For the foregoing reasons, we find

No error.

MARTIN and ARNOLD, JJ., concur.