This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C8-96-1587

Pete's Water & Sewer, Inc.,

Respondent,

vs.

Naftali Alkalai, et al.,

Appellants,

Mahzal, Inc., et al.,

Defendants.

Filed January 21, 1997

Affirmed

Parker, Judge

Hennepin County District Court

File No. 946157

Pete's Water & Sewer, Inc., 800 Lowry Avenue Northeast, Minneapolis, MN 55418-3628 (respondent pro se)

Steven M. Graffunder, Henningson & Snoxell, Ltd., 6160 Summit Drive, Suite 640, Brooklyn Center, MN 55430 (for appellants)

Considered and decided by Willis, Presiding Judge, Parker, Judge, and Peterson, Judge.

U N P U B L I S H E D O P I N I O N

PARKER, Judge

Appellants Naftali and Lonae Alkalai challenge a trial court award to respondent Pete's Water & Sewer (Pete's). Concluding that a contract existed between the Alkalais and Pete's, the trial court entered a judgment in the amount of $2,781.71. We affirm.

D E C I S I O N

If disputed, the existence and terms of a contract are fact questions. Morrisette v. Harrison Int'l Corp., 486 N.W.2d 424, 427 (Minn. 1992). Furthermore, findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses. Minn. R. Civ. P. 52.01.

1. The Alkalais argue that the trial court erred in concluding they had a contract with Pete's. They contend they did not contract with Pete's to complete the extra work required by the city inspector. They claim the evidence supports a finding that there was no mutual assent to a contract. They also dispute the finding that there was a conversation and agreement with Pete's regarding completion of the extra work. The Alkalais argue, therefore, that Pete's does not have a breach of contract claim against them.

Whether a contract exists is judged objectively by the parties' words and actions, not by their subjective intent. Hill v. Okay Constr. Co., 312 Minn. 324, 332, 252 N.W.2d 107, 114 (1977). Whether an offer has been accepted is a question of fact to be determined from the weight of the evidence. Cooke v. Belzer, 413 N.W.2d 623, 627 (Minn. App. 1987) (citing McEwen v. State Farm Mutual Insurance, 281 N.W.2d 843, 845-46 (1979)).

The trial court found that the city inspector informed Pete's that an "extra" line would have to be installed before the Alkalais could obtain a permit to open the building. The trial court noted that the required extra line was not included in the architectural drawings relied on by Pete's in bidding for the job. The trial court then noted that Pete's discussed the city inspector's required extra work with the Alkalais and explained there would be an additional charge. The trial court also found that the Alkalais needed and wanted the work to be done and agreed that Pete's should complete the work. The trial court then concluded that at the point of agreement to complete the extra work, a new contract was formed between the Alkalais and Pete's.

The trial court's conclusion that a contract existed between the parties is established by the court's findings. There is testimony that the work was required before the building could be opened. Although the city required installation of the "extra" line, the Alkalais failed to include the line in the architectural drawings provided to Pete's. Absent evidence to show that the building could have been opened without compliance with the city inspector's directive to complete the extra work, we cannot say that the trial court erred in the findings made.

2. The Alkalais also argue that Pete's would not be entitled to a judgment based on quantum meruit because they had no contract with Pete's. They contend that Pete's has not established unjust enrichment. Instead, they argue that Pete's has an adequate remedy at law for breach of contract against Sun Mechanical or based on its mechanic's lien had it not failed to comply with Minn. Stat. § 514.01 (1994).

It is well established that an owner is not liable for work or materials furnished a contractor where [the owner] is not a party to the contract between the contractor and subcontractor * * *.

Johnson & Peterson, Inc. v. Toohey, 285 Minn. 181, 183-84, 172 N.W.2d 326, 328 (1969). However, our supreme court has held that subcontractors may be allowed to recover against property owners when there are "unusual" circumstances "which would result in unjust enrichment unless subcontractors were permitted to recover in quasi-contract." Lundstrom Construction Co. v. Dygert, 254 Minn. 224, 232, 94 N.W.2d 527, 533 (1959) (citing Karon v. Kellogg, 195 Minn. 134, 261 N.W. 861, 862 (1935)).

Because the trial court concluded that a valid contract existed between the parties, he did not reach the issue of quantum meruit. In the interest of judicial economy, we conclude that quantum meruit would apply, absent the finding of a valid contract between the parties. There is testimony that the extra work completed by Pete's was required by the city before opening permits would be issued. Furthermore, the Alkalais' general contractor testified that the city's extra line requirement was unknown to him at the time the building plans were drafted and provided to Pete's.

We hold that unusual circumstances existed justifying application of quantum meruit. Because the extra work was required by the city as a prerequisite to the building opening, the Alkalais would be unjustly enriched if Pete's were precluded from recovery for putting it in. We conclude, therefore, that absent a showing that the extra work was not required, Pete's would be entitled to recovery based on quantum meruit.

Affirmed.