The circuit court denied a motion by the defendant P & V Atlas Corporation, a real estate leasing company, to dismiss an amended complaint for failure to state a claim upon which relief can be granted. We affirm.
The plaintiff General Split Corporation, a leather producer, leased the premises of its principal offices from Atlas under successive, written leases beginning April 1, 1955. One of the terms of the leases provided that the defendant furnish the plaintiff its required utility services, including electricity, water, gas, and steam. Plaintiff was to pay the defendant “all charges” for the utilities as measured by the defendant’s meters. The complaint alleges that the defendant based its electrical charges on readings from three, and later four, meters. The plaintiff claims that, if the defendant had based the charges upon single meter service, the electricity charges would have been less since the charges per kilowatt-hour decreased as power use increased.
The plaintiff alleges that the defendant was unjustly enriched by the difference between the amounts it paid *122 and the amounts it would have paid if there were single meter service. The complaint states that the defendant knew of the “benefit” of the difference between charges based on the four meters and a charge based on a single meter but that the plaintiff did not know of such a benefit. The complaint alleges that amounts charged were unconscionably high and contrary to public policy as evidеnced by a 1963 Public Service Commission order authorizing a Wisconsin Electric Power Company rule that customers who “submeter” and resell electricity
“. . . shall charge rаtes which are not higher than the currently filed rates of the company for comparable service to the ultimate user. The rates shall be supplied on thе basis of single meter service or as such service would be metered by the company.”
The complaint states that Wisconsin Electric would have charged on the basis of a single meter. The complaint alleges, finally, that the charges violated the terms of the lease. The plaintiff seeks damages of $887,000 plus interest.
Thе defendant moved to dismiss the complaint for failure to state a claim on which r.elief can be granted. Sec. (Rule) 802.06(2), Stats. The trial court denied the motion, detеrmining that the complaint stated a claim for breach of contract “based on excessive charges under the lease.” The defendant appeаls.
The appeal presents the question: Does the complaint state a claim on which relief can be granted?
We have recently considered the question and said:
“For the purpose of testing whether а claim has been stated pursuant to a motion to dismiss under sec. 802.06 (2) (f), Stats., the facts pleaded must be taken as admitted. Anderson v. Continental Insurance Co.,85 Wis.2d 675 , 683,271 N.W.2d 368 (1978). The purpose of the complaint is to give notice of the nature of the claim; and, therefore, it is not necessary for the plaintiff to set out in the complaint all the facts which must even *123 tually be proved to recover. Id. at 683-84. The purpose of a motion to dismiss for failure to state a claim is the same as the purpose of the old demurrer — to test the legal sufficiency of the claim. Hartridge v. State Farm Mutual Automobile Ins. Co.,86 Wis.2d 1 , 4-5,271 N.W.2d 598 (1978); Anderson, supra at 683. Bеcause the pleadings are to be liberally construed, a claim should be dismissed as legally insufficient only if ‘it is quite clear that under no conditions can the plaintiff recover.’ Clausen and Lowe, The New Wisconsin Rules of Civil Procedure, Chapters 801-803, 59 Marq. L. Rev. 1, 54 (1976). The facts pleaded and all reasonable inferences from the pleadings must be taken as true, but legal conclusions and unreasonable inferences need not be accepted. Hartridge, supra at 4-5.
“Sec. 802.06(2) (f), Stats., on which the motions to dismiss were based, is similar to Rule 12(b) (6) of the Federаl Rules of Civil Procedure. A claim should not be dismissed under the Wisconsin rule or the federal rule unless it appears to a certainty that no relief can be granted under any set of facts that plaintiff can prove in support of his allegations. See, Wright and Miller, 5 Federal Practice and Procedure, sec. 1215, p. 113; Conley v. Gibson,355 U.S. 41 , 47-8 (1957).”
Morgan v. Pennsylvania General Insurance Co.,
In
Val-Lo-Will Farms v. I. Azoff & Asso.,
The essential allegations of this complaint are:
“8. That money in the amount of thе difference between the rates charged by defendant since service began up to the present, and the rates which defendant would have charged рlaintiff had it based its charge *124 upon single meter service was and is wrongfully appropriated and possessed by defendant in the amount of approximately $1,500 рer month.
“9. That the defendant has had knowledge of the existence of the benefit of such difference conferred upon it since the beginning of provision of service to plaintiff, and that plaintiff has not had such knowledge.
“10. That the retention of money in the amount of such difference is unjust enrichment of defendant in that the amounts charged were and are unconscionably high, and in that:
“1) Defendant at all times herein mentioned charged unjust and unreasonably high rates in contravention of Wiscоnsin law and public policy, and after twenty days following the date of the above-mentioned order, in contravention of a lawful order of the Public Service Cоmmission of Wisconsin, which, although not binding on defendant in itself, serves as evidence of the unfairness and injustice of plaintiff’s charges, and as an indication of the generаl law and public policy of the State of Wisconsin ; and
2) At all times herein mentioned, defendant charged and collected monies from plaintiff for electrical service which were and are in excess of the amounts required to be paid by the aforementioned lease (s) between the parties, in that said leаse explicitly segregates utility charges from rent charges at paragraph 4(c), and said charge was and is unreasonably high and unjust.”
The law implies a promise of repayment (when no rule of public policy and good morals has been violated) of a benefit conferred by one upon another when it would be inequitable to allow retention of the benefit.
Hicks v. Milwaukee County,
Defendant contends that it had no legal duty to charge the plaintiff lower rates and, therefore, that there wаs no overpayment or “benefit” conferred on the defendant.
*125
If the payments were in excess of those required by the contract, the plaintiff might, however, be entitled to restitution.
Cf.: George J. Meyer Manufacturing Co. v. Howard Brass & Copper Co.,
The complaint further alleges that the rates were illegal and against public policy. Coupled with the allegation that the plaintiff did not know of the difference between the rates, there is a claim for restitution stated since a party not in pari delicto may have restitution of benefits conferred under an illegal contract. Restatement of Contracts, sec. 604 (1932); Restatement of Restitution, sec. 107(1) (1937). See also: Dobbs, Remedies, see. 13.5 at 997 (Hornbook Series, 1973); Wade, Restitution of Benefits Acquired Through Illegal Trаnsactions, 95 U. Pa. L. Rev. 261 (1947). Whether the contract is illegal because it is opposed to public policy is an issue which can only be resolved after full consideration of the facts.
By the Court. — Order affirmed.