This is an appeal from an order denying any recovery by unpaid subcontractors against an owner. The subcontractors claim that they are entitled to recovery because the owner, by accepting their work, has been unjustly enriched.
On May 16, 1974, appellees Sanford Freeman and Daniel Handler executed a mortgage in favor of Hamilton Invest
Hamilton made its first advance on the construction loan on May 29, 1974, and continued to make advances during the remainder of 1974, and in 1975. In June of 1975, one of the buildings in the shopping plaza was substantially completed, and the structural steel work for another of the buildings was half completed. Deposition of Joseph Carl Walsh, April 28, 1977 at 21. On June 6, Freeman and Handler and Hamilton entered into a new construction loan agreement, which, like the original construction loan agreement, was unrecorded. The new agreement reduced the amount of the loan to $1,100,000 because one of the major tenants had pulled out and a new tenant did not want as much space. Deposition of Joseph Carl Walsh, April 28, 1977 at 9. The agreement also stipulated that Hamilton would not have to advance any money beyond $1,050,000 until Freeman and Handler had found a tenant for some of the space that had been left vacant by the major tenant’s departure. The agreement left open the possibility that the financing might go as high as $1,200,000 if Freeman and Handler obtained a written commitment for long-term financing from an institutional lender.
At the time of the June 6 agreement, Hamilton had advanced $648,000. On June 10, Hamilton advanced $162,-005.56, of which $87,005.56 went to a title company that had been engaged to clear up existing liens on the property. In July, August, and September, respectively, Hamilton advanced $70,000, $110,000, and $105,000 to Freeman and Handler. Deposition of Joseph Carl Walsh, April 28, 1977 at 17. As of the last advance, on September 22, Hamilton had advanced a total of $1,049,342.69 towards the project.
1
On
Appellants are 11 subcontractors out of a group of 16 who performed work on the project in 1974 and 1975 and were never paid by Freeman and Handler. Exhibit B of the Stipulated Facts contains the following record of their work:
EXHIBIT “B”
The record makes it clear that of the subcontractors on the project, only one, Rosenthal Chadwick, Inc., which was granted relief by the court below and is not a party to this appeal, had more than an extremely limited knowledge of the financing between Freeman and Handler and Hamilton. Irving Rosenthal of Rosenthal Chadwick testified that when
When there was no further communication from Freeman and Handler, appellants filed the following mechanics’ liens against the property:
By amended order entered November 2, 1978, the lower court ordered “that a constructive trust in the amount of eleven thousand forty dollars ($11,040.00) with interest from November 5, 1975, is hereby imposed against the real estate sold at the sheriff’s sale held on June 23, 1976, purchased by the Mortgagee, Hamilton Investment Trust as described in [the recorded] mortgage .... The Prothonotary shall index the case as a verdict entered in the amount of eleven thousand forty dollars ($11,040.00) with interest from November 17, 1975 in favor of Rosenthal Chadwick, Inc., Plaintiff.” Record at 34a. The court granted Rosenthal Chadwick this adequate recovery because it had relied on Hamilton’s assurances of financing. The court refused to grant the other subcontractors any recovery because they were unable to show that they had relied on any assurances from Hamilton. As already indicated above, Hamilton has not appealed from the order in favor of Rosenthal Chadwick. The subcontractors denied recovery have appealed.
As appellants, the subcontractors argue that their unsatisfied claims against Freeman and Handler should be satisfied out of Hamilton’s unexpended loan funds on the project, namely, the difference between the $1,016,508.49
3
that Hamilton advanced to Freeman and Handler and the $1,350,000 that was originally agreed upon in the mortgage
This court recently had before it a case in which appellants’ theory was tested on a slightly different set of facts. In
Myers
—Macomber
Engineers v. M.L. W. Construction Corp. and HNC Mortgage and Realty Investors,
Appellants rely on
Morgan-Oswood and Associates, Inc., of Fla. v. Continental Mortgage Investors,
It will be observed that Myers-Macomber and Morgan-Oswood may be regarded as supplementing each other. Where Morgan-Oswood explicitly held that recovery will be allowed on proof of unjust enrichment, Myers-Macomber may be read as implicitly holding that such recovery will be allowed, denying it not as a matter of legal principle but rather because on the facts, there was no unjust enrichment. However, Myers-Macomber may be read more narrowly, as going no further than assuming arguendo, without holding, that recovery will be allowed on proof of unjust enrichment, thus leaving undecided the issue of legal principle. Given this uncertainty, we must consider and decide de novo, so to speak, whether under Pennsylvania law an unpaid subcontractor should be permitted to recover against a lender upon proof that as a result of the subcontractor’s work, the lender has been unjustly enriched. 6
It is important to start this consideration by noting that we are not concerned with a situation where an unpaid subcontractor asserts a right to recover on some theory other than unjust enrichment. Recently, we had occasion to consider the subject of an unpaid subcontractor’s rights, in
Bornstein v. Macy et al.,
[u]nder established principles, subcontractors may proceed against an owner in either of two situations: if there is a direct, or express, or “actionable,” promise by the owner to pay the subcontractors [citations omitted]; or if the contract between the owner and the general contractor contains a promise “for the benefit of all the subcontractors who [have] not been paid” [citations omitted].278 Pa.Super. at 115 ,420 A.2d at 486 .
Since neither of those situations prevailed, we denied recovery. In doing so, we expressly noted that whether a subcontractor may recover on proof of unjust enrichment was not an issue pertinent to our decision.
As already noted, this issue has been decided in other jurisdictions.
See Morgan-Oswood and Associates, Inc., of Fla. v. Continental Mortgage Investors, supra,
and the other cases in
accord,
cited
supra.
Before deciding whether to follow these cases, however, it should be noted that there is another line of cases at least implicitly if not explicitly
contra.
As has been stated,
Morgan-Oswood
involved a claim by an unpaid subcontractor against a lender, on the theory that the lender had been unjustly enriched because the value of its security had been enhanced as a result of the subcontractor’s work. Suppose, however, that the unpaid subcontractor claims that the owner, rather than the lender, has been unjustly enriched. Will the action lie? In many jurisdictions, the answer is that it will not. It would seem to follow that in those jurisdictions, cases such as
Morgan-Os-wood
would not be followed, on the basis that no distinction should be made between the liability of an owner and of a lender, so far as an unpaid subcontractor is concerned. Furthermore, cases denying recovery against an owner are especially pertinent to the present case, for Hamilton may
Cases involving the liability of an owner on a claim of unjust enrichment include the following: Constanzo,
v. Stewart,
These cases, it will be observed, may be divided into three categories: those that require proof that the owner has engaged in some wrongdoing or misrepresentation; those that require proof that the subcontractor has exhausted statutory or contractual remedies; and those that require some sort of direct contractual relationship between the subcontractor and owner. It is not apparent to us, however, why a subcontractor should have to satisfy any of these additional requirements to make out a case of unjust enrichment.
As regards the requirement of proof of wrongdoing or misrepresentation: We have specifically held that on a claim of unjust enrichment, a showing of wrongdoing or wrongful intent on the part of the benefited party is not necessary. Thus, in
Kimball v. Barr Township,
As regards the requirement of exhaustion of remedies: No doubt in most cases, the preferable remedy from the unpaid subcontractor’s point of view will be to file a mechanic’s lien. This will be so because the remedy is so expeditious and drastic; the lien may be easily filed, and once filed, may preclude the owner from selling the property until the lien has been satisfied. However, we see no reason why a subcontractor who for some reason does not file a lien should be penalized by being unable to recover on a claim of unjust enrichment. By not filing a lien, the subcontractor will have lost the considerable procedural advantages given him by the mechanics’ lien law. That is penalty enough. To go further, and deny the subcontractor any recovery at all, even when the subcontractor can show that the owner, or lender, has been unjustly enriched, seems to us to serve no useful purpose, and to be inconsistent with the principle of such cases as
Kimball v. Barr Township,
that “[o]ur courts focus ... on the result of unjust enrichment.” A similar
Finally, as regards the requirement of some sort of direct relationship between the subcontractor and the owner: The cases imposing this requirement seem to us to ignore the fact that the essence of the doctrine of unjust enrichment is that there is no direct relationship between the parties. Sometimes, of course, there will be a direct relationship, in the form of a promise either to the subcontractor or for the benefit of the subcontractor. In such a case, the subcontractor has a right to recover on the promise. See Bornstein v. Macy, supra. The existence of that right, however, precludes a claim of unjust enrichment. Thus in Roman Mosaic and Tile Co., Inc. v. Vollrath, supra, we stated:
The doctrine of unjust enrichment is clearly “inapplicable when the relationship between the parties is founded on a written agreement or express contract. Third National Bank & Trust Co. of Scranton v. Lehigh Valley Coal Company,353 Pa. 185 , 193,44 A.2d 571 (1945).” Schott v. Westinghouse Elec. Corp.,436 Pa. 279 , 290,259 A.2d 443 , 448 (1969).
Here, the unpaid subcontractors do not assert any contractual right to recover against Hamilton, whether Hamilton be regarded as lender or owner, nor does it appear that they could assert any such right. Given this fact, we see no reason to hold that they may not assert a claim of unjust enrichment.
There is at least one decision that is opposed to the cases requiring an unpaid subcontractor to prove wrongful conduct by the owner, or exhaustion of remedies, or some sort
With this conclusion reached, the question arises, which, if any, of the unpaid subcontractors in the present case are entitled to recover on a claim of unjust enrichment? The answer to this question is that we do not know. On the one hand, several of the subcontractors, Frederic Gee, Sherwin Williams Co., Fingerlakes Glass Corporation, Peskin Sign Company, Unloading Corporation, and Mancini and Klimchuk Co., Inc., began their work at a time when it is unlikely that Hamilton could have made advances on their behalf. This is so because advances were made on the basis of the prior month’s work and these subcontractors began their work on the last day of August or in September, when the last advance to Freeman and Handler was made. On the other hand, the other subcontractors, Temple & Peffer, J. Screed, Inc., Leva Bros. Tile & Marble Co., Inc., Enjem’s Inc., and R.S.E., Inc. d/b/a Wellsboro Asphalt Company, began their work considerably before the last advance was made. It is therefore possible that Hamilton made advances 8 to pay for their work in which event Hamilton may not be said to be unjustly enriched, even if the subcontractors did not receive the advances from Freeman and Handler. See Myers-Macomber Engineers v. M.L. W. Construction Corp. and HNC Mortgage and Realty Investors, supra.
Since the case must be remanded, it is in order to discuss two additional arguments made by appellants. If not resolved now, the lower court and the parties will be uncertain about how to proceed on remand.
Appellants argue that Hamilton was necessarily unjustly enriched by appellants’ work because after it purchased the property at the sheriff’s sale, it resold the property to a third party for $1,400,000, reaping a “profit” of just under $385,-000, since it had made only $1,016,508.49 in advances to Freeman and Handler. We are not persuaded by this argument.
Appellants neither pleaded the resale in their complaint nor amended the complaint to do so. The fact of the resale is therefore not of record. As an appellate court we may not consider facts or materials referred to in a party’s brief but not of record.
Acker v. Palena,
Assuming that on remand the lower court decides that evidence of the resale is admissible-and we do not mean to intimate what the court’s decisión on this point should be-we note that the evidence would not necessarily be determinative. In
Miller v. Mountain View Savings and Loan Assn., supra,
a developer had defaulted on a completed
It is therefore unnecessary to determine what effect the subsequent resale by [the lender] had upon the respective rights and obligations of it, as lender, and respondent as claimant. It has been conceded in this case that the sale by [the lender] cut off any right [the subcontractor] had under his recorded claim or lien. It may be assumed that he had no other right in the property itself or in the proceeds from the subsequent sale. It was therefore error to receive the evidence concerning that sale.
This appears to hold that once the lender purchases the property at the sheriff’s sale, the subcontractor has no right to participate in any subsequent profit. We agree in part with this proposition. If the lender has in fact made advances to pay for the work of a subcontractor, it has satisfied its obligation-so far as it is concerned, it has paid for the work-and the subcontractor may not claim part of the proceeds of the profit on an unjust enrichment theory. If, however, the lender has not made advances to pay for the work of the subcontractor, the subcontractor may be entitled to recover from the lender on a claim of unjust enrichment. On that claim, evidence of resale may be relevant as tending to show the value to the lender of the subcontractor’s work.
Appellants also argue that an equitable lien should be imposed on Hamilton’s unexpended loan funds on the basis of appellants’ reliance on the existence of the funds and on certain assurances that Freeman and Handler gave them with respect to the funds. In support of this argu
The California cases do not deal with the issue of whether subcontractors may rely on a loan fund where the fund may originally have been sufficient to meet their claims, but over the course of the project was reduced by the parties to the loan. That is what occurred here. Appellants argue that Hamilton should be held to its original obligation to supply $1,350,000, but to accept that argument would mean that
We therefore conclude that a contractor or subcontractor must show that it relied on assurances of adequate financing from the lender itself, in order to recover from the lender on a reliance theory. In
Pioneer Plumbing Supply Co. v. Southwest Savings & Loan Assoc.,
The order of the lower court is reversed and the case is remanded for further proceedings consistent with this opinion.
Notes
. The record indicates that on December 24, 1975, $32,834.20 was returned to Hamilton from a title company that had previously - received money from Hamilton to clear up liens on the project.
. Richard Bernard of Fingerlakes Glass testified that he tried to talk to Hamilton but received no cooperation and referred the matter to his credit company. N.T. at 34, 7/12/77.
. See note 1, supra.
, Appellants have made other arguments, but these require only brief comment.
Appellants argue that they were third party beneficiaries of the contractual relationship between Freeman and Handler as owners/borrowers and Hamilton as lender. In
Spires v. Hanover Fire Ins. Co.,
To be a third party beneficiary entitled to recover on a contract it is not enough that it be intended by one of the parties to the contract and the third person that the latter should be a beneficiary, but both parties to the contract must so intend and must indicate that intention in the contract; in other words, a promisor cannot be held liable to an alleged beneficiary of a contract unless the latter was within his contemplation at the time the contract was entered into and such liability was intentionally assumed by him in his undertaking; the obligation to the third party must be created, ánd must affirmatively appear in the contract itself. [Citations omitted.]
Here, there are some provisions in the Mortgage and the accompanying Construction Loan Agreement that might be read as intending to confer benefit on the subcontractors. Paragraph 9 of the Mortgage states:
The undersigned Mortgagor [Freeman and Handler] hereby represents and warrants that all property, fixtures and equipment described herein will be paid for and free from all liens, encumbrances, title retaining contracts and security interests when delivered and/or installed upon the Premises, and it is agreed that such property, fixtures and equipment shall be deemed to be realty and a part of the freehold.
Mortgage Agreement at 5.
Moreover, Paragraph 15 of the Construction Loan Agreement states: Borrower will cause the construction of the improvements to be prosecuted with diligence and continuity and will complete the same strictly in accordance with the Plans on or before the Completion Date referred to in Exhibit B, and will keep the Premises and Improvements free of liens or claims for liens for material supplied and for labor or services performed in connection with the construction of the Improvements ....
Construction Loan Agreement at 8.
Paragraph 17 of the Construction Loan Agreement states:
Borrower will receive the advances to be made hereunder and will hold the right to receive the same as a trust fund for the purpose of paying the costs of construction of the Improvements and it will apply the same solely for such purpose, except that that portion of the Loan constituting the Purchase Money Loan, as such term is
Construction Loan Agreement at 8.
However, as against these provisions, Paragraph 7 of Section 5 of the Construction Loan Agreement states:
All conditions of the obligations of Lender to make advances hereunder are imposed solely and exclusively for the benefit of Lender and its assigns and no other persons shall have standing to require satisfaction of such conditions in accordance with their terms or be entitled to assume that Lender will refuse to make advances in the absence of strict compliance with any or all thereof and no other person shall, under any circumstances, be deemed to be beneficiary of such conditions, any or all of which may be freely waived in whole or in part by Lender at any time if in its sole discretion it deems it advisable to do so.
Construction Loan Agreement at 22.
Paragraph 3 of Section 11 of the Construction Loan Agreement also states:
Except as hereinabove otherwise specifically provided, the parties do not intend the benefits of this Agreement to inure to any third party. Notwithstanding anything contained herein or in the Mortgage, Note, or any other document executed in connection with this Agreement, or any conduct or course of conduct by any of the parties hereto, before or after signing this Agreement or any of the other aforesaid documents, this Agreement shall not be construed as creating any rights, claims or causes of action against the Lender, in favor of the General Contractor or any other contractor, subcontractor, supplier of labor or materials, or any of their respective creditors, or any other person or entity other than Borrower. Without limiting the generality of the foregoing, advances made directly to the General Contractor or any other contractor, subcontractor or supplier or labor or materials, whether or not the payments are approved by Borrower, shall not be deemed a recognition by the Lender of a third-party beneficiary status of any such person or entity.
Construction Loan Agreement at 32-33.
Given the last two provisions, we conclude that Hamilton and Freeman and Handler did not intend that the subcontractors should be third party beneficiaries of either the Construction Loan Agreement or the Mortgage. See Pioneer Plumbing Supply Co. v. Southwest Savings & Loan Assoc., infra.
Appellants also argue that their mechanics’ liens survived the sheriffs sale because of the temporary injunction barring Hamilton from transferring the property free and clear of the liens. It is settled that a sheriffs sale divests any mechanics liens so that the purchaser takes possession of unencumbered property.
Rosenberg v. Cupersmith,
. In
J. G. Plumber Service Inc. v. Coastal Mortgage Co.,
. This issue has not been decided by
R. M. Shoemaker Co. v. Southeastern Pennsylvania Development Corporation et al.,
. Whether a party has been unjustly enriched must be judged on a case-by-case basis. The focus is necessarily on the intentions of the parties to the transaction. Depending on what they are, it may or may not be “unconscionable" for a party to retain a benefit it has received. Where, for example, one party gives a second one a piece of property with no expectation of payment in return, it would not be “unconscionable” for the second party to retain the property.
. These advances, if they occurred, represented only 90% of the value of the subcontractors’ work. Para. 1, Section 4, Construction Loan Agreement. These subcontractors might therefore still have a claim against Hamilton for 10% of the value of their work.
. On remand, appellants will have to demonstrate that there is a specific
res
upon which a constructive trust may be imposed. Under a constructive trust or an equitable lien theory, an essential requisite is an identifiable
res,
that is, a debt, duty, or obligation owing by one person to another.
In Re Penn Central Transportation Company,
In that class of cases, where a constructive trust is sought to be impressed on funds which are required to be withheld for another under a duty imposed by law or by agreement, there must be some specific funds set aside or collected for the other’s account by the person sought to be charged as constructive trustee, [citations omitted]
The record below may disclose any of the following possibilities: that Hamilton originally set up a $1,350,000 account for the project and there are sufficient funds remaining in that account to pay the appellants; that the original account had sufficient funds to pay the appellants but no longer does; or that the original account was no longer in existence at the time appellants performed their work and any further disbursements made on the project afterwards were in a separate account. If the first possibility turns out to be the case, appellants will have no difficulty establishing a
res
consisting of the unexpended funds. Nor will the appellants have difficulty establishing a
res
if the second possibility is the case. In
Kimball v. Barr, supra,
Although appellant alleges that he no longer possesses the funds provided by Barnes and Tucker, this does not prevent us from impressing a constructive trust on appellee. If appellee is to be successful in holding appellant liable as a constructive trustee, it must establish that a res exists or existed upon which a constructive trust can be impressed. See Restatement of Restitution § 160 (1937). However, if appellant held property at any point in time which properly can be decreed the subject of a constructive trust, the mere fact that he does not now hold such property will not preclude the imposition of personal liability upon it for the improper disposition of such property.
The final possibility would present the greatest obstacle to finding a
res.
If Hamilton can show that there were no funds in the original account and that the original account no longer existed at the time the appellants performed their work, then Hamilton might argue that it never held any money for appellants in a discrete account. The case might then be analogized to
Philadelphia v. Mancini, supra,
where the Court refused to impose a constructive trust on behalf of the city of Philadelphia for unpaid wage taxes since it was unable to show that the defendant-subcontractor had placed any funds for this purpose in a separate account. It should be noted, however, that as the record stands now, it indicates that after appellants performed their work Hamilton continued to pay other workmen from the original account set up for the project. Plaintiffs Exh. No. 10. It
. Section 3264 of the California Civil Code, West’s Ann.Civ.Code § 3264 provides:
The rights of all persons furnishing labor, fixtures, equipment or materials for any work or improvement, with respect to any fund for payment of construction costs are governed exclusively by [mechanic’s lien proceedings] and no person may assert any legal or equitable right with respect to such fund, other than a right created by direct written contract between such person and the person holding the fund, except pursuant to the provisions of such chapters.
It seems to be agreed that this provision abolished the equitable lien theory relied on in several of the cases,
see e. g., Doud Lumber Co. v. Guaranty Savings & Loan Assn., supra; McBain v. Santa Clara Savings & Loan Assn., supra,
and the unjust enrichment theory relied on in
Miller v. Mountain View Savings & Loan Assn., supra;
Sutro v. Paramount
Plastering Inc., supra;
and
Whiting Mead Co. v. West Coast Bond and Mortgage Co., supra. Connolly Development, Inc. v. Superior Court,
. Appellants at one point in their brief fault Hamilton for pursuing the project in June 1975 rather than foreclosing since Freeman and Handler had by then defaulted on the payments due February 1, March 1, April 1, and May 1, 1975. Appellants suggest that Hamilton’s motive in not foreclosing was to make sure that appellants had done their work and produced a completed project before it foreclos