OPINION OF THE COURT
This appeal results from an action in assumpsit brought by appellant, J. A. & W. A. Hess, Inc., (Hess), against appellee, Hazle Township. Appellant alleged that it had not been paid for over 6,000 tons of gravel delivered to the appellee and used in the construction of township roads during August, September, and October of 1966. The complaint alleged that payment for the gravel in the amount of $23,528.75, plus interest, was due under an agreement existing between appellant and the appellee. Alternatively, the appellant sought recovery on a quasi-contract basis seeking restitution to prevent unjust enrichment of the appellee. The trial court awarded judgment on the contract for $350, but denied any relief on the quasi-contract claim. On appeal, the Commonwealth Court affirmed.
The appellant contends that the trial court erred in denying recovery on a quasi-contract theory. We agree.
In 1966, appellee advertised for bids for 100 tons, more or less, of gravel to be used in the township roads. Appellant was the successful bidder at a unit price of $3.50 per ton. Subsequently, during the summer of 1966 appellee requested and appellant delivered over 6,000 tons of gravel. Upon the advice of the appellee’s solicitor, the appellee refused to pay for the gravel. Essentially, payment on the contract has been refused because of the significant difference between the amount of gravel specified in the advertisement — 100 tons, more or less, and the amount actually requested — over 6,000 tons. Because of this significant discrepancy, the trial court and the Commonwealth Court concluded that the gravel delivered could not come under the contract calling for 100 tons, more or less.
Appellant’s offer to present evidence of past practices to establish that large quantities of gravel had, in previous years, been delivered and paid for by the township under similar circumstances was rejected by the trial court. The Commonwealth Court concluded that even had such evidence been presented, appellant was not entitled to recover on the contract because, although some flexibility is permitted in a “more or less” contract, the differences here between the amount of gravel stated in the contract and the amount of gravel actually delivered was too great to permit payment under the contract without ignoring the bidding and contract provisions of the Second Class Township Code.
We cannot agree, however, that the appellant was not entitled to recovery on a quasi-contract basis. Over seventy years ago, this Court recognized that a quasi-contract recovery could be had against a municipality.
“Municipal repudiation of honest indebtedness which the municipality intended to contract and could have lawfully contracted, is no more to be tolerated than individual repudiation of honest indebtedness merely because it was not incurred in pursuance of a duly executed express contract, unless the municipal charter or the statutes prohibit the municipality from incurring any liability by implication.”
Long v. Lemoyne Boro.,222 Pa. 311 , 318,71 A. 211 , 212 (1908).
See also, Ohlinger v. Maidencreek Township,
In
Luzerne Township v. Fayette Co.,
“It is true that, in order to avoid results involving obvious injustice, the courts of some jurisdictions, including our own, have held that where a municipality or other local agency of government has voluntarily accepted and retained the benefits of a contract which it had the power to make but which was defective in the method of its execution and consequently invalid, the party who, by furnishing labor or material, has conferred such benefits may recover compensation therefor in a suit, not on the invalid contract itself,, but upon a quantum valebat, quantum meruit, or for money had and received; see article on ‘Quasi-Contractual Liability of Municipal Corporations’ by Professor Tooke, 47 Harvard Law Review 1143. Common honesty requires that a municipality or other governmental agency should not be allowed, any more than a private individual, wholly to repudiate an obligation of which it has deliberately appropriated the benefits, and, in such cases, if the municipality does not restore the property which it has received, an implied obligation to make compensatory payment for it arises: Rainsburg Borough v. Fyan,127 Pa. 74 , 80,17 A. 678 ,4 L.R.A. 336 ; Long v. Lemoyne Borough,222 Pa. 311 , 317, 318,71 A. 211 , 21 L.R.A.,N.S., 474; Aspinwall-Delafield Co. v. Borough of Aspinwall,229 Pa. 1 , 6,77 A. 1098 ; Ohlinger v. Maidencreek Township,312 Pa. 289 , 294, 295, 296,167 A. 882 ,90 A.L.R. 1227 ; Ephrata Water Co. v. Ephrata Borough,16 Pa.Super. 484 , 489, 490; Washington Female Seminary v. Washington Borough,18 Pa.Super. 555 , 559.”
330 Pa. at 253 ,199 A. at 330 .
Some confusion has existed in this area because the Luzerne case, from which we quoted above, contains language stating that there is an exception to the right to obtain a quasi-contract recovery against a municipality. Luzerne said that the quasi-contract principle
“. . . does not extend, to benefits which by their very nature cannot be surrendered and the retention of which is therefore not voluntary, as, for example, paved highways or improvements upon buildings:
Kreusler v. McKees Rocks School District,
We are at a loss to explain the above
dicta
appearing in
Luzerne
if it is made on the basis of the cases of this Court cited after the statement of the exception. Those cases have been examined and do not support the exception. On the other hand, we agree with the exception if it is intended to state a principle normally applicable when recovery is sought on a quasi-contract basis, although that principle is not applicable to the case before us. For example, if one paints a house in the owner’s absence without the owner’s knowledge, there can be no restitution for unjust enrichment because the owner
at no time
had an opportunity to reject or return the benefit. See Restatement of Restitution § 112. On the other hand, if the owner is present and silently watches, without objecting, his house being painted in error when the adjacent house should have been paint
In this case, the exception does not apply. The township requested the gravel over a three month period. It had an opportunity to reject the gravel. It did not do so. It had an opportunity at one point to reject the benefit. It did not do so. The benefit was not one conferred without knowledge-by the municipality. Under these circumstances, the appellant is entitled to a quasi-contract recovery, not to exceed the $3.50 per ton.
There is no question that appellant conferred a benefit upon appellee in supplying over 6,000 tons of gravel to the roads in need of repair delivered to the sites as requested. It would be unjust for appellee to accept and retain this benefit without rendering compensation. The measure of recovery in these cases is the reasonable value of the materials furnished.
Luzerne Township v. Fayette County,
We have examined other issues raised and find them to be without merit.
The judgment of the trial court awarding the appellant $350.00 for 100 tons of material delivered pursuant to the contract which was vacated by this Court,
J. A. & W. A. Hess, Inc. v. Hazle Township,