Appeal, No. 144, April T., 1962, from judgment of Court of Common Pleas of Allegheny County, Oct. T., 1959, No. 2090, in case of Frank DeGasperi v. Fred Valicenti et ux. Judgment affirmed.
A. S. Fingold, for appellant.
Jerome M. Libenson, with him Lampl, Kirshner & Libenson, for appellee.
Before Rhodes, P.j., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.
[ 198 Pa. Super. Page 456]
OPINION BY MONTGOMERY, J.
The appellee, Frank DeGasperi, filed a suit in assumpsit against Fred Valicenti and Carmela Valicenti, the appellant, to recover the remainder of an amount still due and owing for stone masonry work done on three houses being built by Fred Valicenti, under three oral contracts with Fred Valicenti alone. The claim against appellant was based on quasi contracts and not on expressed or implied ones, it being alleged that she owned the lots on which the houses were erected and had received without payment the benefit of appellee's services.
The evidence established that title to the three lots had been in appellant's name when the work was started and that title to two remained in her name after it was finished; however, she had conveyed the third not before completion of appellee's work but retained the proceeds of the sale. This appeal by Carmela followed the entry of judgment on a verdict against both.
[ 198 Pa. Super. Page 457]
The sole issue is whether or not Carmela Valicenti, having accepted the use and benefit of the appellee's services, is legally liable therefor.
Appellant's argument is based on the lack of conversation or agreement, either express or implied, between Carmela Valicenti and the appellee. A contract implied in law is a fictional contract, or a quasi contract, whereby a duty is imposed upon a person, not because of any express or implied promise on his part to perform it, but rather is imposed upon him by law and in spite of any intention he may have to the contrary. It is entirely different from a contract implied in fact, which is an actual contract, and which arises where the parties agreed upon the obligation to be incurred but their intention, instead of being expressed in words, is inferred from their acts in the light of the surrounding circumstances. Cameron v. Eynon, 332 Pa. 529, 3 A.2d 423; Colish v. Goldstein, 196 Pa. Superior Ct. 188, 173 A.2d 749. Contracts implied in law, or quasi contracts, will be presumed where no proper contract exists, express or implied, and where it is necessary to account for a relation found to exist between the parties. Thomas v. R. J. Reynolds Tobacco Company, 350 Pa. 262, 38 A.2d 61.
It is well established that a person who has been unjustly enriched at the expense of another must make restitution to the other. Binns v. First National Bank of California, Pennsylvania, 367 Pa. 359, 80 A.2d 768.
Here the services performed benefited the property owned by Carmela Valicenti since she acquired and enjoyed the use of the appellee's labors which clearly enhanced the value of her properties. The testimony shows that under a "family arrangement" the property and the bank account from which payments on contracts were drawn were held in the appellant's name. Her husband ...