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Almost ready to file answer - need help unjust enrichment common count in California


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Okay have been working on my answer to summons received from Asset Acceptance, pretty confident with filing the general denial after all the research I have done and not a lot, if any, defenses with the exception of the vague, etc etc.

I feel pretty comfortable addressing the common count allegations of open book account stated in writing. However they have also listed the common count of unjust enrichment. I have done some research on is but haven't come up with a whole lot, so if anyone who has any experience or information on how to address this allegation would be great, specifically if there is anything I can assert in my answer up front to hopefully take care of that one.

Some of my questions are:

What is the SOL in California in this type of cause of action? So far the case law I have found shows 3 years however, those cases were within one of the specifically named sections within the CCP section. Does anyone know of a statute that addresses this type of debt? I have been researching but haven't come across one yet. If I can argue the 3 year SOL then will be able to put this allegation outside of SOL.

I am assuming that to be able to assert this cause of action the Plaintiff must still prove their standing. I know they are going for a quasi-contract theory on this claim, in case they can't prove the written, however, if they assert even part of an express agreement, would that be sufficient to attack the unjust enrichment claim? Case law I have found so far holds that if there is an express agreement then one cannot recover under unjust enrichment.

I think this is telling me they don't really have anything and they are throwing everything at the wall to see if it will stick, hoping I don't respond.

What are the elements they have to prove for unjust enrichment? How much must they have to show that I allegedly accepted and received benefits? Would it be the same as for account stated, basic accounting from day one of the account?

Thanks for all the help and advice so far, everyone has been so informative and helpful.

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It is well established that a plaintiff can not abandon a contracural claim in order to be awarded a more generous claim on a quasi contracural theory....

 

Berry v. Barbour,A "quasi" or constructive contract is an implication of law. An "implied" contract is an implication of fact. In the former the contract is a mere fiction, imposed in order to adapt the case to a given remedy. In the latter, the contract is a fact legitimately inferred. In one the intention is disregarded; in the other, it is ascertained and enforced. In one, the duty defines the contract; in the other, the contract defines the duty, Okla 1954

 

Quantum meruit "what one has earned". In the context of contract law it means "reasonable value of services".

 

to state a claim for unjust enrichment a plaintiff or defendant must allege that (1) defendant was enriched; (2) the enrichment was at plaintiff's expense; and (3) the circumstances were such that equity and good conscience require defendants to make restitution.

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BTO429 thanks.

Understand the elements, just wondering how they have to prove and what defenses or holes I can poke into their claim?

Anyone deal with the unjust enrichment? Want to try and make sure my answer is sufficient so that I do not have to amend if at all possible.

Will they need to show a full account from day one for this cause of action? Certain number of statements? Etc...

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If you research the case law relevant to the three elements BTO429 gave you for the unjust enrichment claim. And you come up with enough facts to dismiss that count, or plaintiff can't meet all the elements of that alleged count...then it is preferable to file a Motion to Dismiss [MTD] that count. As opposed to answering.

 

If you understood the elements of that count, then you should understand and know what they have to prove. If you understand and believe they can't support all the elements of that count, then you should make your arguments in a MTD.

 

Why answer if you don't have to?

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Sometimes the law is not clear.  I think the better view in California (at least now) is that unjust enrichment is not a separate cause of action.  Here is more than you will ever want to know about the subject:  http://www.jjllplaw.com/2011/03/26/what-happened-to-unjust-enrichment-in-california/

 

Bottom line for you:  don't worry about what SOL would apply to unjust enrichment.  If you are going to raise the SOL as a defense (and most lawyers do), simply say:  Plaintiff's complaint, and each casue of action alleged therein, is barred by the applicable statute of limitations.

 

Technically, that affimative defense would be subject to a demurrer for failing to specify the precise statute of limitations you wish to invoke.  However, I have never seen a plaintiff file such a demurrer.  And if it did, and you sent out a BOP as I suggest, it would open up a huge can of worms about your need for every single statement so you could determine exactly which statutes apply.  Personally, I don't think any plaintiff wants to go there.

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Calawyer thanks so much. That was what I was finding so far in the cases but wasn't quite sure since they are listing it as a separate cause of action. I am thinking they are trying for a catch all if nothing else works.

I will definitely check out the information you provided.

I am planning on sending BOP. Should I send before I send the Answer? Same time? Or just after? I have seen and heard all sorts of different recommendations. Does BOP have to have the Notice of Service as the Answer does? Either way I am sending CMRR.

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Okay have been working on my answer to summons received from Asset Acceptance, pretty confident with filing the general denial after all the research I have done and not a lot, if any, defenses with the exception of the vague, etc etc.

I feel pretty comfortable addressing the common count allegations of open book account stated in writing. However they have also listed the common count of unjust enrichment. I have done some research on is but haven't come up with a whole lot, so if anyone who has any experience or information on how to address this allegation would be great, specifically if there is anything I can assert in my answer up front to hopefully take care of that one.

Some of my questions are:

What is the SOL in California in this type of cause of action? So far the case law I have found shows 3 years however, those cases were within one of the specifically named sections within the CCP section. Does anyone know of a statute that addresses this type of debt? I have been researching but haven't come across one yet. If I can argue the 3 year SOL then will be able to put this allegation outside of SOL.

I am assuming that to be able to assert this cause of action the Plaintiff must still prove their standing. I know they are going for a quasi-contract theory on this claim, in case they can't prove the written, however, if they assert even part of an express agreement, would that be sufficient to attack the unjust enrichment claim? Case law I have found so far holds that if there is an express agreement then one cannot recover under unjust enrichment.

I think this is telling me they don't really have anything and they are throwing everything at the wall to see if it will stick, hoping I don't respond.

What are the elements they have to prove for unjust enrichment? How much must they have to show that I allegedly accepted and received benefits? Would it be the same as for account stated, basic accounting from day one of the account?

Thanks for all the help and advice so far, everyone has been so informative and helpful.

 

Erred in posting

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BTO429 ... motion to continue lol

 

Actually I have a question, now that I have reviewed that wonderful information calawyer provided on unjust enrichment and was just going over the CACI instructions, I need a little clarification as to the Cause of Action, and correct me if I am reading the complaint wrong... you know how California loves their forms, however sometimes they make it more confusing.

 

So, here goes...

 

I only have Common Counts

Under a.

1) open book account

2) account was stated in writing, agreed that D was indebted

Under b.

6) unjust enrichment by receiving monetary and other benefit

 

Now here is my question, is this stating that this is three separate causes of action that they are filing under, or is the b portion of the form to show the consideration that was given. I am asking, since a common count has to include 1) statement of indebtedness in a certain sum, 2) the consideration (goods sold, work done, etc) and 3) nonpayment.

 

If, by the information from calawyer, California is not viewing unjust enrichment as a separate cause of action are they saying that the consideration was the unjust enrichment by receiving money and other benefit? Or do each of these just have an implied consideration, that plaintiff will have to prove, but this is sufficent for the complaint?

 

Any direction or clarification is appreciated.

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BTO429 ... motion to continue lol

 

Actually I have a question, now that I have reviewed that wonderful information calawyer provided on unjust enrichment and was just going over the CACI instructions, I need a little clarification as to the Cause of Action, and correct me if I am reading the complaint wrong... you know how California loves their forms, however sometimes they make it more confusing.

 

So, here goes...

 

I only have Common Counts

Under a.

1) open book account

2) account was stated in writing, agreed that D was indebted

Under b.

6) unjust enrichment by receiving monetary and other benefit

 

Now here is my question, is this stating that this is three separate causes of action that they are filing under, or is the b portion of the form to show the consideration that was given. I am asking, since a common count has to include 1) statement of indebtedness in a certain sum, 2) the consideration (goods sold, work done, etc) and 3) nonpayment.

 

If, by the information from calawyer, California is not viewing unjust enrichment as a separate cause of action are they saying that the consideration was the unjust enrichment by receiving money and other benefit? Or do each of these just have an implied consideration, that plaintiff will have to prove, but this is sufficent for the complaint?

 

Any direction or clarification is appreciated.

As you can tell by the article, there is still some confusion about the law. But I think the correct interpretation would be that plaintiff has filed a complaint against you with 2 causes of action:  "open book account" and "account stated".  Unjust enrichment would be a remedy that plaintiff might be entitled to if it recovered on either of its two causes of action.

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As you can tell by the article, there is still some confusion about the law. But I think the correct interpretation would be that plaintiff has filed a complaint against you with 2 causes of action:  "open book account" and "account stated".  Unjust enrichment would be a remedy that plaintiff might be entitled to if it recovered on either of its two causes of action.

Thanks calawyer.

Ready to file. Should I send BoP with Answer? Separate? Before? After? Right now I was planning on sending with Answer! That way it is listed on Proof of Service, even though do not have to file that with court, however, just wondering if it makes any difference strategy wise when it is sent?

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"A book account is defined . . . as 'a detailed statement, kept in a book, in the nature of debit and credit, arising out of contract or some fiduciary relation.' It is, of course, necessary for the book to show against whom the charges are made. It must also be made to appear in whose favor the charges run. This may be shown by the production of he book from the possession of the plaintiff and his identification of it as the book in which he kept the account between him and the debtor. An open book account may consist of a single entry reflecting the establishment of an account between the parties, and may contain charges alone if there are no credits to enter. Money loaned is the proper subject of an open book account. Of course a mere private memorandum does not constitute a book account." (Joslin v. Gertz (1957) 155 Cal.App.2d 62, 65-66 [317 P.2d 155],

 

"A book account may furnish the basis for an action on a common count ' ". . . when it contains a statement of the debits and credits of the transactions involved completely enough to supply evidence from which it can be reasonably determined what amount is due to the claimant." ' A book account is described as 'open' when the debtor has made some payment on the account, leaving a balance due." (Interstate Group Administrators, Inc. v. Cravens, Dargan & Co. (1985) 174 Cal.App.3d 700, 708 [220 Cal.Rptr. 250],

 

"[T]he most important characteristic of a suit brought to recover a sum owing on a book account is that the amount owed is determined by computing all of the credits and debits entered in the book account." (Interstate Group Administrators, Inc., supra, 174 Cal.App.3d at p. 708.)

 

"It is apparent that the mere entry of dates and payments of certain sums in the credit column of a ledger or cash book under the name of a particular individual, without further explanation regarding the transaction to which they apply, may not be deemed to constitute a 'book account' upon which an action in assumpsit may be founded." (Tillson v. Peters (1940) 41 Cal.App.2d 671, 679 [107 P.2d 434].)

 

'The common count is a general pleading which seeks recovery of money without specifying the nature of the claim . . . . Because of the uninformative character of the complaint, it has been held that the ypical answer, a general denial, is sufficient to raise almost any kind of defense, including some which ordinarily require special pleading.' However, even where the plaintiff has pleaded in the form of a common count, the defendant must raise in the answer any new matter, that is, anything he or she relies on that is not put in issue by the plaintiff." (Title Ins. Co. v. State Bd. of Equalization (1992) 4 Cal.4th 715, 731 [14 Cal.Rptr.2d 822, 842 P.2d 121],

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  • 4 weeks later...

373. Common Count: Account Stated

[Name of plaintiff] claims that [name of defendant] owes [him/her/it] money on an account stated. To establish this claim, [name of plaintiff] must prove all of the following:

1. That [name of defendant] owed [name of plaintiff] money from previous financial transactions;

2. That [name of plaintiff] and [name of defendant], by words or conduct, agreed that the amount stated in the account was the correct amount owed to [name of plaintiff];

3. That [name of defendant], by words or conduct, promised to pay the stated amount to [name of plaintiff];

4. That [name of defendant] has not paid [name of plaintiff] [any/all] of the amount owed under this account; and

5. The amount of money [name of defendant] owes [name of plaintiff].

Sources and Authority
  • “The essential elements of an account stated are: (1) previous transactions between the parties establishing the relationship of debtor and creditor; (2) an agreement between the parties, express or implied, on the amount due from the debtor to the creditor; (3) a promise by the debtor, express or implied, to pay the amount due.” (Zinn v. Fred R. Bright Co. (1969) 271 Cal.App.2d 597, 600 [76 Cal.Rptr. 663], internal citations omitted.)
  • “The agreement of the parties necessary to establish an account stated need not be express and frequently is implied from the circumstances. In the usual situation, it comes about by the creditor rendering a statement of the account to the debtor. If the debtor fails to object to the statement within a reasonable time, the law implies his agreement that the account is correct as rendered.” (Zinn, supra, 271 Cal.App.2d at p. 600, internal citations omitted.)
  • “An account stated is an agreement, based on the prior transactions between the parties, that the items of the account are true and that the balance struck is due and owing from one party to another. When the account is assented to, ‘ “it becomes a new contract. An action on it is not founded upon the original items, but upon the balance agreed to by the parties…” Inquiry may not be had into those matters at all. It is upon the new contract by and under which the parties have adjusted their differences and reached an agreement.’ ” (Gleason v. Klamer (1980) 103 Cal.App.3d 782, 786—787 [163 Cal.Rptr. 483], internal citations omitted.)
  • “To be an account stated, ‘it must appear that at the time of the statement an indebtedness from one party to the other existed, that a balance was then struck and agreed to be the correct sum owing from the debtor to the creditor, and that the debtor expressly or impliedly promised to pay to the creditor the amount thus determined to be owing.’ The agreement necessary to establish an account stated need not be express and is frequently implied from the circumstances. When a statement is rendered to a debtor and no reply is made in a reasonable time, the law implies an agreement that the account is correct as rendered. Actions on accounts stated frequently arise from a series of transactions which also constitute an open book account. However, an account stated may be found in a variety of commercial situations. The acknowledgement of a debt consisting of a single item may form the basis of a stated account. The key element in every context is agreement on the final balance due.” (Maggio, Inc. v. Neal (1987) 196 Cal.App.3d 745, 752—753 [241 Cal.Rptr. 883], internal citations omitted.)
  • “An account stated need not be submitted by the creditor to the debtor. A statement expressing the debtor’s assent and acknowledging the agreed amount of the debt to the creditor equally establishes an account stated.” (Truestone, Inc. v. Simi West Industrial Park II (1984) 163 Cal.App.3d 715, 726 [209 Cal.Rptr. 757], internal citations omitted.)
  • “ ‘The common count is a general pleading which seeks recovery of money without specifying the nature of the claim … Because of the uninformative character of the complaint, it has been held that the typical answer, a general denial, is sufficient to raise almost any kind of defense, including some which ordinarily require special pleading.’ However, even where the plaintiff has pleaded in the form of a common count, the defendant must raise in the answer any new matter, that is, anything he or she relies on that is not put in issue by the plaintiff.” (Title Ins. Co. v. State Bd. of Equalization (1992) 4 Cal.4th 715, 731 [14 Cal.Rptr.2d 822, 842 P.2d 121], internal citations and footnote omitted.)
  • “The account stated may be attacked only by proof of ‘fraud, duress, mistake, or other grounds cognizable in equity for the avoidance of an instrument.’ The defendant ‘will not be heard to answer when action is brought upon the account stated that the claim or demand was unjust, or invalid.’ ” (Gleason, supra, 103 Cal.App.3d at p. 787, internal citations omitted.)
  • “An account stated need not cover all the dealings or claims between the parties. There may be a partial settlement and account stated as to some of the transactions.” (Gleason, supra, 103 Cal.App.3d at p. 790, internal citation omitted.)
  • “In the common law action of general assumpsit, it is customary to plead an indebtedness using ‘common counts.’ In California, it has long been settled the allegation of claims using common counts is good against special or general demurrers. The only essential allegations of a common count are ‘(1) the statement of indebtedness in a certain sum, (2) the consideration, i.e., goods sold, work done, etc., and (3) nonpayment.’ ” (Farmers Ins. Exchange v. Zerin (1997) 53 Cal.App.4th 445, 460 [61 Cal.Rptr.2d 707], internal citations omitted.)
  • “A common count is not a specific cause of action, . . . rather, it is a simplified form of pleading normally used to aver the existence of various forms of monetary indebtedness, including that arising from an alleged duty to make restitution under an assumpsit theory. When a common count is used as an alternative way of seeking the same recovery demanded in a specific cause of action, and is based on the same facts, the common count is demurrable if the cause of action is demurrable.” (McBride v. Boughton (2004) 123 Cal.App.4th 379, 394 [20 Cal.Rptr.3d 115], internal citations omitted.)
Secondary Sources

4 Witkin, California Procedure (4th ed. 1997) Pleading, § 515

1 Witkin, Summary of California Law (10th ed. 2005) Contracts, §§ 972—973

1 California Forms of Pleading and Practice, Ch. 8, Accounts Stated and Open Accounts, §§ 8.10, 8.40—8.46 (Matthew Bender)

1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 9, Seeking or Opposing Quantum Meruit or Quantum Valebant Recovery in Contract Actions, 9.02, 9.15, 9.32

 

 

372. Common Count: Open Book Account

[Name of plaintiff] claims that [name of defendant] owes [him/her/it] money on an open book account. To establish this claim, [name of plaintiff] must prove all of the following:

1. That [name of plaintiff] and [name of defendant] had (a) financial transaction(s);

2. That [name of plaintiff] kept an account of the debits and credits involved in the transaction(s);

3. That [name of defendant] owes [name of plaintiff] money on the account; and

4. The amount of money that [name of defendant] owes [name of plaintiff].

 

Sources and Authority
  • “ ‘A book account may be deemed to furnish the foundation for a suit in assumpsit . . . only when it contains a statement of the debits and credits of the transactions involved completely enough to supply evidence from which it can be reasonably determined what amount is due to the claimant.’ . . . ‘The term “account,” . . . clearly requires the recording of sufficient information regarding the transaction involved in the suit, from which the debits and credits of the respective parties may be determined, so as to permit the striking of a balance to ascertain what sum, if any, is due to the claimant.’ ” (Robin v. Smith (1955) 132 Cal.App.2d 288, 291 [282 P.2d 135], internal citations omitted.)
  • “A book account is defined . . . as ‘a detailed statement, kept in a book, in the nature of debit and credit, arising out of contract or some fiduciary relation.’ It is, of course, necessary for the book to show against whom the charges are made. It must also be made to appear in whose favor the charges run. This may be shown by the production of the book from the possession of the plaintiff and his identification of it as the book in which he kept the account between him and the debtor. An open book account may consist of a single entry reflecting the establishment of an account between the parties, and may contain charges alone if there are no credits to enter. Money loaned is the proper subject of an open book account. Of course a mere private memorandum does not constitute a book account.” (Joslin v. Gertz (1957) 155 Cal.App.2d 62, 65—66 [317 P.2d 155], internal citations omitted.)
  • “A book account may furnish the basis for an action on a common count ‘ “. . . when it contains a statement of the debits and credits of the transactions involved completely enough to supply evidence from which it can be reasonably determined what amount is due to the claimant.” ’ A book account is described as ‘open’ when the debtor has made some payment on the account, leaving a balance due.” (Interstate Group Administrators, Inc. v. Cravens, Dargan & Co. (1985) 174 Cal.App.3d 700, 708 [220 Cal.Rptr. 250], internal citations and footnote omitted.)
  • “[T]he most important characteristic of a suit brought to recover a sum owing on a book account is that the amount owed is determined by computing all of the credits and debits entered in the book account.” (Interstate Group Administrators, Inc., supra, 174 Cal.App.3d at p. 708.)
  • “It is apparent that the mere entry of dates and payments of certain sums in the credit column of a ledger or cash book under the name of a particular individual, without further explanation regarding the transaction to which they apply, may not be deemed to constitute a ‘book account’ upon which an action in assumpsit may be founded.” (Tillson v. Peters (1940) 41 Cal.App.2d 671, 679 [107 P.2d 434].)
  • “The law does not prescribe any standard of bookkeeping practice which all must follow, regardless of the nature of the business of which the record is kept. We think it makes no difference whether the account is kept in one book or several so long as they are permanent records, and constitute a system of bookkeeping as distinguished from mere private memoranda.” (Egan v. Bishop (1935) 8 Cal.App.2d 119, 122 [47 P.2d 500].)
  • “ ‘The common count is a general pleading which seeks recovery of money without specifying the nature of the claim… . Because of the uninformative character of the complaint, it has been held that the typical answer, a general denial, is sufficient to raise almost any kind of defense, including some which ordinarily require special pleading.’ However, even where the plaintiff has pleaded in the form of a common count, the defendant must raise in the answer any new matter, that is, anything he or she relies on that is not put in issue by the plaintiff.” (Title Ins. Co. v. State Bd. of Equalization (1992) 4 Cal.4th 715, 731 [14 Cal.Rptr.2d 822, 842 P.2d 121], internal citations and footnote omitted.)
  • “Although such an action is one at law, it is governed by principles of equity. It may be brought ‘wherever one person has received money which belongs to another, and which “in equity and good conscience,” or in other words, in justice and right, should be returned … The plaintiff’s right to recover is governed by principles of equity, although the action is one at law.’ ” (Mains v. City Title Ins. Co. (1949) 34 Cal.2d 580, 586 [212 P.2d 873], internal citations omitted.)
  • ince the basic premise for pleading a common count . . . is that the person is thereby ‘waiving the tort and suing in assumpsit,’ any tort damages are out. Likewise excluded are damages for a breach of an express contract. The relief is something in the nature of a constructive trust and . . . ‘one cannot be held to be a constructive trustee of something he had not acquired.’ One must have acquired some money which in equity and good conscience belongs to the plaintiff or the defendant must be under a contract obligation with nothing remaining to be performed except the payment of a sum certain in money.” (Zumbrun v. University of Southern California (1972) 25 Cal.App.3d 1, 14—15 [101 Cal.Rptr. 499], internal citations omitted.)
  • “ ‘As Witkin states in his text, “[a] common count is proper whenever the plaintiff claims a sum of money due, either as an indebtedness in a sum certain, or for the reasonable value of services, goods, etc., furnished. It makes no difference in such a case that the proof shows the original transaction to be an express contract, a contract implied in fact, or a quasi-contract.” ’ A claim for money had and received can be based upon money paid by mistake, money paid pursuant to a void contract, or a performance by one party of an express contract.” (Utility Audit Co., Inc. v. City of Los Angeles (2003) 112 Cal.App.4th 950, 958 [5 Cal.Rptr.3d 520], internal citations omitted.)
  • “In the common law action of general assumpsit, it is customary to plead an indebtedness using ‘common counts.’ In California, it has long been settled the allegation of claims using common counts is good against special or general demurrers. The only essential allegations of a common count are ‘(1) the statement of indebtedness in a certain sum, (2) the consideration, i.e., goods sold, work done, etc., and (3) nonpayment.’ ” (Farmers Ins. Exchange v. Zerin (1997) 53 Cal.App.4th 445, 460 [61 Cal.Rptr.2d 707], internal citations omitted.)
  • “A common count is not a specific cause of action, . . . rather, it is a simplified form of pleading normally used to aver the existence of various forms of monetary indebtedness, including that arising from an alleged duty to make restitution under an assumpsit theory. When a common count is used as an alternative way of seeking the same recovery demanded in a specific cause of action, and is based on the same facts, the common count is demurrable if the cause of action is demurrable.” (McBride v. Boughton (2004) 123 Cal.App.4th 379, 394 [20 Cal.Rptr.3d 115], internal citations omitted.)
Secondary Sources

4 Witkin, California Procedure (4th ed. 1997) Pleading, § 522

1 California Forms of Pleading and Practice, Ch. 8, Accounts Stated and Open Accounts, §§ 8.20, 8.47 (Matthew Bender)

4 California Points and Authorities, Ch. 43, Common Counts and Bills of Particulars, § 43.28 (Matthew Bender)

1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 9, Seeking or Opposing Quantum Meruit or Quantum Valebant Recovery in Contract Actions, 9.02, 9.15, 9.32

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