This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).







Mr. Cinnamon of Kansas, Inc.,





Winner Co.,




Filed April 23, 2002

Foley, Judge


Hennepin County District Court

File No. 013869



Jeffrey C. Thompson, Vest & Howse, P.A., 360 Brookdale Corporate Center, 6300 Shingle Creek Parkway East, Brooklyn Center, MN 55430 (for respondent)


Steven P. Carlson, Jennifer L. Neska, 201 Anthony Place, 2855 Anthony Lane South, St. Anthony, MN 55418 (for appellant)


            Considered and decided by Willis, Presiding Judge, Shumaker, Judge, and Foley, Judge.

U N P U B L I S H E D   O P I N I O N

FOLEY, Judge

            Appellant Winner Co. disputes the district court’s conclusion that the parties formed no contract, arguing the shipping statement formed a contract and the “merchant exception” satisfies the statute of frauds.  Appellant contends the district court erred in granting summary judgment on the issues of (1) conversion, arguing it abused its discretion by finding no contract existed and therefore no conversion occurred, and (2) unjust enrichment.


            On appeal from summary judgment, this court determines whether there are any genuine issues of material fact and whether the trial court erred in its application of the law.  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990); see also Minn. R. Civ. P. 56.03 (setting forth standard for summary judgment).  This court must view the evidence “in the light most favorable to the party against whom judgment was granted.”  Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993) (citation omitted).  On appeal from a grant of summary judgment, this court reviews questions of law de novo.  Christensen v. Eggen, 577 N.W.2d 221, 224 (Minn. 1998).  When at issue, this court reviews the district court’s factual findings under a clearly erroneous standard.  Minn. R. Civ. P. 52.01; Kohn v. City of Minneapolis Fire Dep’t, 583 N.W.2d 7, 14 (Minn. App. 1998), review denied (Minn. Oct. 20, 1998).

            “In order to complete a contract, there must be an offer by one party and an unconditional acceptance by the other.”  St. Paul Fire & Marine Ins. Co. v. Bierwerth, 285 Minn., 310, 317, 175 N.W.2d 136, 141 (1969).  An acceptance is a manifestation of assent to the offer.  Holman Erection Co. v. Orville E. Madsen & Sons, Inc., 330 N.W.2d 693, 695 (Minn. 1983).  In order to form a contract, an acceptance must be coextensive with the offer.  Alpha Venture/Vantage Properties v. Creative Carton Corp., 370 N.W.2d 649, 652 (Minn. App. 1985), review denied (Minn. Sept. 19, 1985). 

            This court has explained that contracts are not complete without the parties’ mutual assent thereto.  Lake Co. v. Molan, 269 Minn. 490, 497, 131 N.W.2d 734, 739 (1964).  Whether a contract is formed is judged by the parties’ objective conduct and not by their subjective intent.  Cederstrand v. Lutheran Brotherhood, 263 Minn. 520, 532, 117 N.W.2d 213, 221 (1962).  Moreover, under the UCC, an enforceable contract must be in a writing showing a contract was made between the parties and is signed by the party against whom enforcement is sought.  Minn. Stat § 336.2-201(1).  An agreement that was not signed does not meet the requirements of the statute of frauds and thus cannot be the basis for an action for damages.  Id.

            Here, respondent Mr. Cinnamon of Kansas, did not sign any agreement showing a contract was made between the parties.  Appellant argues the shipping agreement between respondent and the shipping company formed a contract between respondent and appellant.  We disagree.  The shipping statement did not show a sale price or the purpose for which the cigarettes were being shipped.  Furthermore, the statement was between respondent and the shipper, not respondent and appellant.  We hold no contract was formed between the parties.


Conversion has been defined as an act of willful interference with a chattel, done without lawful justification, by which any person entitled thereto is deprived of use and possession.


Larson v. Archer Daniels-Midland Co., 226 Minn. 315, 317, 32 N.W.2d 649, 650 (1948) (citation omitted).  “The elements of common law conversion are (1) the plaintiff has a property interest and (2) the defendant deprives the plaintiff of that interest.”  Lassen v. First Bank Eden Prairie, 514 N.W.2d 831, 838 (Minn. App.1994) (citation omitted), review denied (Minn. June 29, 1994). 

            Appellant argues that respondent agreed to buy the cigarettes when it accepted them from appellant without payment, but shipped them to Las Vegas.  Respondent states the parties agreed to jointly ship both parties’ cigarettes to Las Vegas to a buyer who agreed to purchase all the cigarettes.  But appellant offers no evidence showing respondent agreed to buy the cigarettes from appellant, rather than jointly ship them to the buyer.  Appellant shipped the cigarettes to respondent through legal channels with no agreement between the parties.  Further, appellant’s expectation of payment does not satisfy its burden either.  We hold appellant failed to meet its burden to survive summary judgment on the conversion claim.


            “The theory of unjust enrichment is based on what the [party] allegedly enriched has received, not on what the opposing party has lost.”  Zirinsky v. Sheehan, 413 F.2d 481, 489 (8th Cir. 1969) (quoting Georgopolis v. George, 237 Minn. 176, 185, 54 N.W.2d 137, 142 (1952)).  Numerous cases have denied unjust enrichment claims for failure to prove enrichment.  See, e.g., Zirinsky, 413 F.2d at 489 (defaulting vendee failed to prove vendor's enrichment); Cady v. Bush, 283 Minn. 105, 110, 166 N.W.2d 358, 362 (1969) (vendors did no more than exercise their rights under their written agreement with vendees).  Generally, an unjust enrichment claim “does not lie merely because one party benefits from another’s efforts or obligations,” but rather there must be a showing that a party was “unjustly enriched in the sense that the term ‘unjustly’ could mean illegally or unlawfully.”  Custom Design Studio, a Div. of L.B. Baron Properties, Inc. v. Chloe, Inc., 584 N.W.2d 430, 433 (Minn. App. 1998) (quoting First Nat'l Bank of St. Paul v. Ramier, 311 N.W.2d 502, 504 (Minn.1981)), review denied (Minn. Nov. 24, 1998).

            Here, the parties’ cigarettes were stolen after they were shipped to Las Vegas.  Appellant’s injury stems from that theft of the cigarettes by an unknown criminal, not from any actions by respondent.  Appellant has introduced no evidence of wrongdoing on the part of respondent, nor has it shown respondent was enriched. Moreover, the shipment of cigarettes, which included those belonging to respondent, were stolen and respondent gained nothing.  Respondent lost money from this transaction as well.  We hold appellant failed to meet its burden to survive summary judgment on the unjust enrichment claim.


            Appellant now asserts for the first time that the “Merchant Exception” satisfies the statute of frauds.  Because appellant failed to argue this in front of the district court it is not properly before this court; therefore, we will not rule on it here.  See Thiele v. Stich, 425 N.W.2d 580, 582-83 (Minn. 1988).




* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.