
    Charles SULLIVAN d/b/a Sullivan Machine & Tool Company v. MAZAK CORPORATION.
    1980235.
    Supreme Court of Alabama.
    June 30, 2000.
    Rehearing Denied Sept. 1, 2000.
    Joseph J. Boswell, Mobile, for appellant.
    Ray Morgan Thompson of Hawkins & Thompson, L.L.C., Mobile, for appellee.
   ENGLAND, Justice.

AFFIRMED. NO OPINION.

See Rule 53(a)(1) and (a)(2)(B), Ala. R.App. P.

HOOPER, C.J., and MADDOX, HOUSTON, COOK, LYONS, and BROWN, JJ., concur.

SEE and JOHNSTONE, JJ., concur in part and dissent in part.

SEE, Justice

(concurring in part and dissenting in part).

I dissent from the no-opinion affirmance of the summary judgment in favor of the defendant Mazak Corporation on its unjust-enrichment counterclaim against the plaintiff Charles Sullivan d/b/a Sullivan Machine & Tool Company. Otherwise, I concur in the affirmance of the trial court’s judgment.

A party cannot recover on a claim of unjust enrichment where there is an enforceable express contract between the parties concerning the same subject matter on which the unjust-enrichment claim rests. See Kennedy v. Polar-BEK & Baker Wildwood Partnership, 682 So.2d 443, 447 (Ala.1996). See also Barry Mogul & Assocs., Inc. v. Terrestris Dev. Co., 267 Ill.App.3d 742, 750-51, 643 N.E.2d 245, 251-52, 205 Ill.Dec. 294, 300-01 (1994), stating:

“It is well established, as a general rule, that a plaintiff cannot pursue a quasi-contractual claim where there is an enforceable express contract between the parties.... ‘Difficulties arise with quasi-contractual claims when there is an express contract between the parties. The general rule is that no quasi-contractual claim can arise when a contract exists between the parties concerning the same subject matter on which the quasi-contractual claim rests. The reason for this rule is not difficult to discern. When parties enter into a contract they assume certain risks with an expectation of a return. Sometimes, their expectations are not realized, but they discover that under the contract they have assumed the risk of having those expectations defeated. As a result, they have no remedy under the contract for restoring their expectations. In desperation, they turn to quasi-contract for recovery. This the law will not allow. Quasi-contract is not a means for shifting a risk one has assumed under contract.’ ”

(Citations omitted.) I conclude that an enforceable express contract exists between Sullivan and Mazak concerning the same subject matter on which Mazak’s unjust-enrichment counterclaim rests. The dispute between Sullivan and Mazak concerns one of the terms of that contract. Therefore, I dissent from the affirmance of the trial court’s judgment insofar as it relates to Mazak’s unjust-enrichment claim.

JOHNSTONE, Justice

(concurring in part and dissenting in part).

I dissent from affirming the summary judgment against the plaintiff Sullivan on his deceit claim. For the reasons stated by Justice See in his special writing, I also dissent from affirming the summary judgment in favor of the defendant Mazak on its unjust enrichment counterclaim against Sullivan. I concur in all other holdings.  