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April 24, 1989

ROBERT C. RANQUIST, JR., Individually and d/b/a Robert C. Ranquist & Co., Plaintiff,

The opinion of the court was delivered by: DUFF


 Plaintiff Robert C. Ranquist, Jr. has sued defendants James Donahue and Frances Donahue for restitution in the form of an equitable lien for construction improvements on the defendants' property. After the defendants moved to dismiss pursuant to Fed.R.Civ.P. 12(b) (6), this court referred to the motion to Magistrate Lefkow for a report and recommendation ("R&R"). On February 1, 1989, the magistrate issued an R&R recommending that the motion be denied, and returned the case to this court. The defendants have filed objections to the R&R pursuant to Fed.R.Civ.P. 72(b). For the reasons set forth below, this court rejects the magistrate's recommendation and grants the defendants' motion.


 The complaint alleges the following. In 1978, the City of Darien ("the City") and the Ford City Bank and Trust Company, Trust No. 1870 ("the Trust"), entered into a pre-annexation agreement ("the Agreement") pursuant to the Trust's purchase of the Westminster subdivision in Darien, Illinois. The Agreement required, in part, that certain improvements be made to the property prior to residential development of the subdivision. These improvements included storm and sanitary sewers, water mains, street lighting, road and curb construction, mass earthwork, tree and brush clearing, and off-site restoration. The improvements had to be constructed on the whole subdivision prior to or in conjunction with the City's issuance of building permits for any of the nine lots. The Agreement was executed on October 10, 1978 and was binding on the signers and their successors for a period of ten years.

 The subdivision is comprised of nine lots. Eight of the nine form a U-shape with the lots consecutively numbered from Nos. 1 to 8. Lot No. 9 forms the interior of the U-shape and is reserved as a public utility and drainage easement. Prior to 1986, the defendants purchased lot No. 7. On July 2, 1986, the plaintiff purchased the remaining eight lots.

 Shortly after his purchase, the plaintiff decided to construct the required improvements on the property. He offered to purchase the defendants' lot, but they declined to sell. He then asked the defendants to contribute to the cost of the improvements, but they refused. The plaintiff proceeded to do the work. During the course of the construction, and after it was completed, the plaintiff asked the defendants to reimburse him for their fair share of the improvements, but again they refused.

 Some time later, the defendants engaged a construction firm to build a house on their lot. They intend to sell their improved lot in the future. The plaintiff has sued the defendants for their proportionate share of the construction, $ 19,370.37.


 The parties agree that this is a case of quasi-contract (or contract implied-in-law) and that the general principles governing this case lie in § 1 of the Restatement of Restitution: "A person who has been unjustly enriched at the expense of another is required to make restitution to the other." Since the plaintiff has alleged that the defendants were enriched by the improvements to the subdivision, the sole question presented here is whether that enrichment (at the plaintiff's expense) was unjust.

 Although the defendants make a plethora of arguments as to why their retention of the benefits conferred on them by the plaintiff is not unjust, the case turns on the answer to a single question: Did the Agreement unqualifiedly require the lot owners to construct the improvements on the property, or did it instead require them to do so only if they elected to develop the property? Let's see why.

 Because both parties were successors to the Agreement, they were both bound by its terms. Under settled principles of contribution, "a person who has discharged more than his proportionate share of a duty owed by himself and another as to which, between the two, neither had a prior duty of performance, is entitled to contribution." Restatement of Restitution § 81; see Falcone v. Hinsdale Gynecology & Obstetrics, Ltd., 148 Ill. App. 3d 439, 447, 102 Ill. Dec. 137, 499 N.E.2d 694 (1986). Thus, if the Agreement required that the construction be undertaken irrespective of what the owners intended to do with the property, then the plaintiff and the defendants were co-obligors to the City, and the defendants must reimburse the plaintiff for their proportionate share of the construction undertaken to satisfy this obligation. *fn1"

 On the other hand, if the plaintiff and the defendant were required to do the construction only if they chose to develop the property, then when the plaintiff did the construction, he did so voluntarily. The case then falls within the ambit of § 112 of the Restatement: "A person who without mistake, coercion or request has unconditionally conferred a benefit upon another is not entitled to restitution." Two recent Illinois cases have addressed the quasi-contractual obligations of a person who benefits from work voluntarily conducted by another in situations closely analogous to this case. Knaus v. Dennler, 170 Ill. App. 3d 746, 751, 525 N.E.2d 207, 121 Ill. Dec. 401 (1988); Board of Directors of Carriage Way Property Owners Association v. Western National Bank of Cicero, 139 Ill. App. 3d 542, 547-48, 94 Ill. Dec. 97, 487 N.E.2d 974 (1985). In both cases, the courts denied recovery in quasi-contract for unjust enrichment. See also Palmer, Restitution, § 10.7(b) at 426-27 (1978). *fn2"

 The plaintiff seems to argue that, even if the defendants had no obligation to do the construction, they are liable because they accepted the improvements by doing their own residential construction after the improvements were completed. The magistrate agreed, concluding that the defendants' rapid decision to build a house on ...

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