McGIVERIN, Chief Justice.

In this appeal of a small claims decision, defendant Russell N. Pelo contends the district court erred by entering judgment against him for payment of a hospital bill.

Upon our review, we agree with the district court’s conclusion and judgment that defendant Pelo is personally liable for the hospital bill.

I. Background facts and proceedings.

On Sunday January 8,1995, at 3:00 a.m., the Hardin County Magistrate was contacted by Dr. Gude from the Ellsworth Municipal Hospital in Iowa Falls in regard to a patient, Russell N. Pelo. The record indicates that Pelo left his marital residence, after having an argument with his *22wife, and cheeked into a motel in Iowa Falls. Pelo later telephoned his wife “making threats of self harm” and purchased a shotgun. While the record is silent regarding the subsequent events, Pelo was apparently taken to the Ells-worth Municipal Hospital by the police, who had been advised of his threats.

Pursuant to the emergency hospitalization procedures set forth in Iowa Code section 229.22(3) and (4) (1995), the magistrate found probable cause that Pelo was seriously mentally impaired and likely to physically injure himself. The magistrate-thus entered an emergency hospitalization order on January 8, requiring that Pelo be detained in custody at the hospital’s psychiatric unit for examination and care for a period not to exceed forty-eight hours.

During admission to the hospital, Pelo was given a hospital release form to sign which would have made either Pelo or his insurance company responsible for the hospital bill. Pelo refused to sign the form. According to Pelo, at approximately five o’clock that morning, a nurse awakened him and demanded that he sign the hospital release form or the hospital could not insure the safety or return of his personal items. Pelo eventually read and signed the form. The form stated that Pelo understood he remained hable for any charges not covered by insurance.

Thereafter, Pelo’s wife filed an application for involuntary hospitalization of Pelo pursuant to Iowa Code section 229.6 and apparently an order for immediate hospitalization was entered by a hospitalization referee under Iowa Code section 229.11.

An evidentiary hearing was held before the judicial hospitalization referee on January 13, concerning Pelo’s commitment status. Medical reports and testimony were received by the referee. Pursuant to a written order, the hospitalization referee found that Pelo suffers from mental illness described as bipolar disorder, an illness from which Pelo has suffered for many years. In addition, the referee concluded “that although the Respondent [Pelo] clearly is in need of and would benefit from treatment for a serious mental illness, the required elements for involuntary hospitalization are lacking,” and that further involuntary hospitalization was not authorized. Pelo was released from the hospital and court jurisdiction as of January 13,1995.

The hospital later sought compensation from Pelo in the amount of $2,775.79 for medical services provided to him from January 8 to January 13, 1995. Pelo refused to pay the bill or authorize his health insurance carrier to do so. The hospital later assigned its claim against Pelo concerning the hospital bill to plaintiff Credit Bureau Enterprises, Inc., for collection. Plaintiff Credit Bureau filed a petition against Pelo on the small claims docket in district court, seeking judgment on the hospital bill. Credit Bureau later also named Cerro Gordo county as a defendant, based on the theory that the county, Pelo’s county of legal settlement, would be liable for mental health services provided to Pelo. See Iowa Code §§ 230.1, 230.2.

At a hearing concerning plaintiffs small claims petition, Pelo admitted that he was hospitalized from January 8 through January 13, 1995, but argued that he made no agreement to pay for services provided to him. Pelo explained that upon being admitted to the hospital, he refused to complete the hospital release form so that his health insurance carrier could be contacted for payment because he believed that he did not need evaluation or treatment. Pelo argued he later signed the release form under duress and that he did not agree to pay for medical services provided. Pelo stated he had health insurance and was not indigent at the time he was hospitalized.

The district associate judge concluded that there was no statutory requirement that Cerro Gordo county pay for medical services provided to Pelo during his hospitalization because Pelo was hospitalized at a private hospital and not a state hospital. *23 See Iowa Code § 230.1. The court further concluded, however, that as a matter of public policy and under a reasonable interpretation of the involuntary commitment and mentally ill support statutes in Iowa Code chapters 229 and 230, Pelo could not be permitted to receive court-ordered services and then choose to ignore his responsibility to pay for those services. The court therefore entered judgment in favor of plaintiff Credit Bureau and against Pelo in the amount of $2,775.79, plus interest. The court also dismissed Credit Bureau’s claim against Cerro Gordo county.

Under Iowa Code section 631.13, Pelo appealed to a district court judge the district associate court’s decision that he was personally hable for the hospital bill. However, neither Pelo nor the plaintiff appealed that portion of the decision dismissing plaintiff’s claim against Cerro Gor-do county. The county is therefore not involved in this appeal and is out of the case.

On Pelo’s appeal, the district court judge affirmed. The court concluded that by signing the hospital form, Pelo had entered into a valid, enforceable contract to be financially responsible for the hospital bill. In doing so, the court rejected Pelo’s contention that the agreement was not enforceable because he allegedly signed the form under duress. In the alternative, the court concluded that Pelo was liable for payment of the hospital bill under a theory of contract implied in law or quasi-contract, based on the court’s conclusion that Pelo benefited from his hospitalization for which he should pay.

We granted Pelo’s application for discretionary review. See Iowa Code § 631.16.

II. Standard of review.

On discretionary review of a small claims action, see Iowa Code § 631.16, our standard of review depends on the nature of the case. Hyde v. Anania, 578 N.W.2d 647, 648 (Iowa 1998). If the action is a law case, we review the district judge’s ruling on error. Id. This small claims case began as an action to collect on account, which is a law action. In such cases, we review the judgment of the district court for correction of errors at law. Iowa R.App. P. 4; Meier v. Sac & Fox Indian Tribe, 476 N.W.2d 61, 62 (Iowa 1991).

III. Defendant’s liability.

The issue we must decide is who pays for mental health medical services provided to a patient who is involuntarily committed to a private hospital. To answer this question, we first examine the applicable statutes governing involuntary hospitalization procedures for persons with mental illness.

A. Statutory provisions concerning emergency hospitalization and involuntary commitment, Iowa Code chapters 229 and 230.

Pelo was hospitalized at the Ellsworth Municipal Hospital, which has a mental health ward, pursuant to the emergency hospitalization provisions set forth in Iowa Code section 229.22.

Pursuant to the emergency hospitalization procedures outlined in section 229.22(2), a peace officer may take a person, whom the officer believes to be mentally ill and because of that illness is likely to physically injure the person’s self or others if not immediately detained, to the “nearest available facility as defined in section 229.11, subsections (2) and (3).” Possible facilities where the person may be taken include a “suitable hospital,” see Iowa Code § 229.11(2), or a facility in the community which is licensed to care for persons with mental illness, Iowa Code § 229.11(3). A “hospital” is defined as a public or private hospital. Iowa Code § 229.1(5).

Ellsworth Municipal Hospital is a private hospital, see Iowa Code section 229.1(9) (defining private hospital), as opposed to a public hospital, but would seem to be an appropriate facility for placement *24for purposes of emergency hospitalization proceedings. '

Iowa Code section 229.22(5) states that costs associated with the emergency hospitalization of a person at a public hospital shall be paid in the same way as if the person had been admitted to the hospital pursuant to involuntary commitment proceedings, see Iowa Code §§ 229.6-229.13. There appear to be no other relevant provisions in chapter 229 concerning payment of costs associated with emergency hospitalization or involuntary commitment of a person at a private hospital.

Pursuant to Iowa Code sections 230.1 and 230.10, a patient’s county of legal settlement is liable for costs and expenses associated with the custody, care and commitment of the patient at a state hospital. The term “state hospital” refers to the facilities in Mount Pleasant, Independence, Clarinda and Cherokee, Iowa, see Iowa Code § 226.1, and thus would not include a private hospital such as Ellsworth Municipal Hospital. A county paying such costs, however, could seek reimbursement from the patient or from persons liable for the patient’s support pursuant to Iowa Code section 230.15. Additionally, Iowa Code section 227.14 provides that where a county does not have proper facilities for caring for persons with mental illness, the county board of supervisors may provide for such care at the expense of the county in any private institution for persons with mental illness. No such provision was made by Cerro Gordo county in the present case.

Although sections 230.1 and 230.10 clearly impose a duty on a patient’s county of legal settlement to pay for costs associated with emergency hospitalization or involuntary commitment of the patient at a state hospital, there appears to be no statutory provision, other than section 227.14, which requires a county to pay for such costs incurred at a private hospital. See 1991 Op. Iowa Att’y Gen. 135, 136 (“There is no mandatory requirement or provision in chapter 230 that requires a county to pay for cost of mental health treatment at a private facility.”).1 Nor is there any specific statutory provision addressing a patient’s financial responsibility for such costs at a private hospital. The only discussion in chapter 230 concerning a patient’s liability for medical costs is in Iowa Code section 230.18, which states that the estates of persons legally bound for the support of persons with mental illness who are treated in any county or private hospital shall be liable to the county for the reasonable cost of such support. Thus, while it is clear that a patient’s county of legal settlement is liable for costs associated with emergency hospitalization or involuntary commitment at a state hospital, there seems to be a gap in the statutory framework concerning who must pay for such costs incurred at a private hospital.

B. Liability under implied contract theory.

The district court judge concluded that Pelo was liable for payment of the private *25hospital bill under a contract implied in law or quasi-contract theory.

1. Applicable law.

“A contract implied in law is an obligation imposed by the law without regard to either party’s expressions of assent either by words or acts.” Irons v. Community State Bank, 461 N.W.2d 849, 855 (Iowa App.1990) (citing Corbin on Contracts § 19 (1952)). Such contracts do not arise from the traditional bargaining process, but rather “rest on a legal fiction arising from considerations of justice and the equitable principles of unjust enrichment.” Hunter v. Union State Bank, 505 N.W.2d 172, 177 (Iowa 1993). As such, they are not real contracts and the general rules of contracts therefore do not apply to them. Id.; accord 1 Samuel Williston, A Treatise on the Law of Contracts § 1:6, at 27 (Richard A. Lord ed., 4th ed.1990) (hereinafter “Williston”). More specifically, the contracts clause of article I, section 10 of the United States Constitution does not apply to quasi-contracts. Williston, § 1:6, at 27.

“Restitution and unjust enrichment are modern designations for the older doctrine of quasi contracts or contracts implied in law, sometimes called constructive contracts.” Robert’s River Rides v. Steamboat Dev. Corp., 520 N.W.2d 294, 302 (Iowa 1994) (citations omitted). The term “ ‘unjust enrichment is an equitable principle mandating that one shall not be permitted to unjustly enrich oneself at the expense of another or to receive property or benefits without making compensation for them.’ ” Id. (quoting West Branch State Bank v. Gates, 477 N.W.2d 848, 851-52 (Iowa 1991)). Under these principles, where a person acts to confer benefits on another in a setting in which the actor is not acting officiously, the benefited party may be required to make restitution to the actor. Okoboji Camp Owners Co-op. v. Carlson, 578 N.W.2d 652, 654 (Iowa 1998) (citing Restatement of Restitution §§ 1, 2 (1936)). Thus, where a person performs services for another which are known to and accepted by the latter, the law implies a promise to pay for those services. Patterson v. Patterson’s Estate, 189 N.W.2d 601, 604 (Iowa 1971); Snyder v. Nixon, 188 Iowa 779, 781, 176 N.W. 808, 809 (1920) (“The general rule is that where one renders services of value to another with his knowledge and consent, the presumption is that the one rendering the services expects to be compensated, and that the one to whom the services are rendered intends to pay for the same, and so the law implies a promise to pay.”).

The Restatement of Restitution states that “[a] person who officiously2 confers a benefit upon another is not entitled to restitution therefor.” Restatement of Restitution § 2. Under this rule, recovery is denied so that one will not have to pay for a benefit forced upon one against one’s will, see 1 E. Allan Farnsworth, Farnsworth on Contracts § 2.20, at 173 (2d ed.1998), or for which one did not request or knowingly accept. See Nursing Care Servs. v. Dobos, 380 So.2d 516, 518 (Fla.Dist.Ct.App.1980) (referring to rule as the “officious intermeddler doctrine”).

In certain circumstances, however, restitution for services performed will be required even though the recipient did not request or voluntarily consent to receive such services. For example, section 116 of the Restatement of Restitution provides:

A person who has supplied things or services to another, although acting without the other’s knowledge or consent, is entitled to restitution therefor from the other if

(a) he acted unofficiously and with intent to charge therefor, and

*26(b) the things or services were necessary to prevent the other from suffering serious bodily harm or pain, and

(c) the person supplying them had no reason to know that the other would not consent to receiving them, if mentally competent; and

(d) it was impossible for the other to give consent or, because of extreme youth or mental impairment, the other’s consent would have been immaterial

(Emphasis added.) Comment b to section 116 states:

Knowledge of dissent. There can be no restitution for services or things rendered to a person who refuses to accept the services and who is of sufficient mental capacity to understand the necessity of receiving them. ... If however, the person is insane, or if he is otherwise not fully mentally competent, ... a person rendering necessaries or professional services is entitled to recover from such person under the conditions stated in this Section, although the person expresses an unwillingness to accept the things or services. 3

(Emphasis added.)

In addition to the principles set forth in the Restatement of Restitution discussed above, cases from other jurisdictions have concluded that a patient is liable for the reasonable value of medical services rendered by a hospital based on an implied in law contract theory. See Nursing Care Servs., 380 So.2d at 518 (concluding that provider of nursing care services was entitled to value of services provided to patient based on emergency aid quasi-contract theory); Galloway v. Methodist Hosps., Inc., 658 N.E.2d 611, 614 (Ind.Ct.App.1995) (holding that equity demanded that patients pay for medical services rendered by hospital in birth of child to prevent unjust enrichment); Heartland Health Sys. v. Chamberlin, 871 S.W.2d 8, 11 (Mo.Ct.App.1993) (affirming on appeal judgment entered in favor of hospital against patient for payment of medical services under quantum meruit theory); Morehead v. Conley, 75 Ohio App.3d 409, 599 N.E.2d 786, 789 (1991) (holding defendant liable under quasi-contract theory for reasonable value of services rendered by physician); Potter v. McPherson, 198 W.Va. 158, 479 S.E.2d 668, 675 (1996) (holding that hospital had claim against patient based on implied contract for reasonable value of services rendered even though patient was not fully compensated by settlement with at-fault party; medical provider’s claim rests upon debtor-creditor relationship and cannot be extinguished by doctrine of sub-rogation).

2. Application of law to facts.

The district court concluded that Pelo benefítted by his hospitalization and that Pelo was liable for medical services rendered to him. Upon our review, we agree with the district court’s decision.

We first point out that Pelo does not challenge the factual basis for his hospitalization. Nor is it likely that such a challenge would be successful given the fact that the necessary probable cause findings concerning emergency hospitalization by the magistrate, see Iowa Code § 229.22(3), and involuntary commitment procedures by the hospitalization referee, see Iowa Code § 229.11, were made. These fact-finding requirements are in place to guarantee a patient’s liberty and due process interests when the state exercises its authority through emergency hospitalization and involuntary commitment proceedings. This authority is based on the standard for *27commitment, “serious mental impairment” as defined in section 229.1(14), which “melds the important elements of the police power and parens patriae doctrine.” B.A.A. v. University of Iowa Hosps., 421 N.W.2d 118, 122-23 (Iowa 1988) (discussing historical background of state’s authority in involuntary commitment proceedings).

Pelo also does not challenge the hospitalization referee’s finding that he suffers from mental illness described as bipolar disorder. Nor does Pelo challenge the district court’s finding that $2,775.79 was the reasonable cost of services provided to him during his hospitalization. Pelo contends, however, that he has no duty to pay for those services because he did not ask to be hospitalized and derived no benefit from his hospitalization. Pelo bases his argument, in part, on the hospitalization referee’s finding made after the commitment hearing that further hospitalization was not authorized (based on a finding that there was not clear and convincing evidence that Pelo was seriously mentally impaired, see Iowa Code § 229.13). Pelo apparently interprets the referee’s decision to mean that he should not have been hospitalized in the first place and that he therefore derived no benefit from his hospitalization.

We find no merit in these contentions. First, the hospitalization referee’s final decision is not relevant to Pelo’s duty to pay for services previously rendered to him by the hospital. The referee’s decision only addressed the propriety of any future hospitalization, not whether there was an adequate basis for hospitalization of Pelo in the first place or whether he medically benefited from his hospitalization.

Second, Pelo’s opinion as to whether he needed or consented to medical services provided to him during his hospitalization is essentially irrelevant. This is because the emergency hospitalization order, which was based on the magistrate’s probable cause finding that Pelo was seriously mentally impaired, see Iowa Code § 229.22(3), establishes that Pelo lacked sufficient judgment to make responsible decisions concerning hospitalization and lacked the ability to consent to treatment. See Iowa Code § 229.1(14) (defining “seriously mentally impaired”).

Additionally, like the district court, we find that Pelo’s hospitalization was indeed of medical benefit to him. The hospital provided services to Pelo from January 8 to 13, 1995, in good faith and not gratuitously. Such services were provided for Pelo’s benefit, pursuant to court orders based on probable cause findings that Pelo was seriously mentally impaired and likely to injure himself or others if not immediately detained in the hospital. Based on the later reports of the physicians who examined and evaluated Pelo during his hospitalization, the referee found that Pelo “clearly is in need of and would benefit from treatment for a serious mental illness.” This finding, we believe, would at a minimum alert Pelo to the seriousness of his mental illness and the need for further treatment, a fact that would surely be of medical benefit to him. The fact that Pelo was involuntarily hospitalized in order that this evaluation and finding could be made, and the fact that he may disagree with whether this finding is of medical benefit to him, does not eliminate the medical benefit he received from such hospitalization.

We conclude that plaintiff is entitled to recover the value of those medical services provided to Pelo. See Restatement of Restitution § 116 cmt. b (if a person is otherwise not fully mentally competent, a person rendering necessaries or professional services is entitled to recover from such person although the person expresses an unwillingness to accept the services). The district court therefore properly determined that Pelo was legally obligated to pay for those services based on an implied in law contract theory. See Heartland Health Sys., 871 S.W.2d at 11 (affirming on appeal judgment entered in favor of hospital against patient for payment of *28medical services under quantum meruit theory).

Because we conclude that Pelo is legally obligated to pay for medical services provided to him under an implied contract in law or quasi-contract theory, we need not consider whether an express contract was formed based on Pelo’s later signature on the hospital admission form. See Johnson v. Dodgen, 451 N.W.2d 168, 175 (Iowa 1990) (the existence of a contract generally precludes the application of the doctrine of unjust enrichment); Chariton Feed & Grain, Inc. v. Harder, 869 N.W.2d 777, 791 (Iowa 1985) (an express and an implied contract cannot be found to exist on the same subject matter).

C. Constitutional claims.

Pelo further contends that to require him to pay for medical services he did not want or ask for violates either his constitutional right to due process under article I, section 9 of the Iowa Constitution, or his right to contract under article I, section 21 of the Iowa Constitution. These contentions have no merit. First, quasi-contracts are not true contracts and therefore the general rules of contract, including the constitutional provisions concerning the right to contract, do not apply to them. See Williston, § 1:6, at 27.

Additionally, we point out that Pelo does not assert that the emergency hospitalization or involuntary commitment proceedings are constitutionally invalid. Based on this fact, and the preliminary factual probable cause findings of the magistrate and hospitalization referee that Pelo was seriously mentally impaired, we assume that Pelo’s involuntary hospitalization complied with the requisite procedural due process safeguards. Having established these facts, holding Pelo liable for payment of the medical services provided to him during his hospitalization does not violate his constitutional right to due process or his right to contract under the Iowa Constitution.

IV. Disposition.

We conclude that the district court properly determined that defendant Pelo was hable for payment of mental health medical services provided to him during his hospitalization at Ellsworth Municipal Hospital under a quasi-contract theory. The court therefore properly entered judgment in favor of plaintiff Credit Bureau against defendant Pelo for the amount of the hospital bill.

We affirm the judgment of the district court.

AFFIRMED.

All justices concur except CARTER, J., who takes no part.

EN BANC

GROSS, Judge.

Equity Contracting Company, Inc.(“Equity”) filed a one-count complaint against Commerce Partnership 8908 Limited Partnership (“Commerce”). The count was set forth under the heading “Quantum Meruit.” The complaint contained the following allegations:

Commerce was the owner of an office budding. Commerce contracted with a general contractor, World Properties, Inc., to perform improvements on its property. Equity was the stucco and surfacing subcontractor for the job, having contracted with the general contractor to perform the work. Because it inspected the job on a weekly basis, Commerce was aware of Equity’s work. Equity completely performed its subcontract and the reasonable value of its work was $17,100. Commerce failed to pay the general contractor the full amounts due for the job. The general contractor did not pay Equity. Commerce was unjustly enriched because it had accepted Equity’s services without paying any entity for them.

*385In its answer, Commerce asserted that it had paid the general contractor in full.

At the non-jury trial, Equity presented its direct case in under 30 minutes. Equity’s president testified that his company had contracted with the general contractor to stucco Commerce’s property for $17,100. He indicated that at the start of the job he expected payment only from the general contractor and not from Commerce. Both the general contractor and a representative from Commerce inspected the work as it progressed. After the work was completed, Commerce gave Equity a punch list of remedial work. When Equity’s president asked for at least partial payment from Commerce, the latter’s representative indicated that “he couldn’t do it.” Having received no payment, Equity did not complete the punch list. Equity brought suit against the general contractor, who later declared bankruptcy. Equity adduced no evidence regarding Commerce’s payments to the general contractor under the construction contract or to any other party for work covered by the contract.

After Equity rested, Commerce moved for an involuntary dismissal, arguing that the evidence did not establish a contract implied in fact. Commerce’s attorney contended that the term “quantum meruit” was synonymous with a contract implied in fact. The trial court denied the motion. During closing argument, Equity asserted that it had established a claim for quantum meruit, which it interpreted to mean unjust enrichment. Arguing that a quasi contract claim had first been injected into the case during closing argument, Commerce’s attorney obtained permission to reopen his case. By this point in the trial, there was no agreement as to the cause of action at issue or the requirements of proof. The trial judge observed, “[w]e are in equity and I have some difficulty with wondering what the issues are and who is going to prove what.”

Commerce’s witness testified that the contract price it had negotiated with the general contractor for the improvements was $256,-894. He identified three payments totalling $223,065.04 that Commerce made to the general contractor — $173,088.07 in progress payments, $24,976.97 in response to application for payment number 8, and $25,000 in final settlement of the general contractor’s lawsuit against Commerce. Commerce also sought to introduce evidence that it had paid $64,097 directly to three subcontractors who had performed work on the building, who were not paid by the general contractor, and who had perfected mechanics’ liens. The trial court sustained Equity’s objection to this testimony on the ground of relevance.

Relying on Zaleznik v. Gulf Coast Roofing Co., Inc., 576 So.2d 776 (Fla. 2d DCA 1991), the trial court entered judgment in favor of Equity for $17,100.

Contract Implied in Fact and Quasi Contract

This case is a paradigm for the confusion that often surrounds the litigation of implied contracts.

A contract implied in fact is one form of an enforceable contract; it is based on a tacit promise, one that is inferred in whole or in part from the parties’ conduct, not solely from their words. 17 Am.Jur.2d “Contracts” § 3 (1964); 1 Arthur Linton Corbin, Corbin on Contracts §§ 1.18-1.20 (Joseph M. Perillo ed. 1993). Where an agreement is arrived at by words, oral or written, the contract is said to be “express.” 17 Am.Jur.2d “Contracts” at § 3. A contract implied in fact is not put into promissory words with sufficient clarity, so a fact finder must examine and interpret the parties’ conduct to give definition to their unspoken agreement. Id.; 3 Corbin on Contracts § 562 (1960). It is to this process of defining an enforceable agreement that Florida courts have referred when they have indicated that contracts implied in fact “rest upon the assent of the parties.” Policastro v. Myers, 420 So.2d 324, 326 (Fla. 4th DCA 1982); Tipper v. Great Lakes Chemical Co., 281 So.2d 10, 13 (Fla.1973). The supreme court described the mechanics of this process in Bromer v. Florida Power & Light Co., 45 So.2d 658, 660 (Fla.1950):

[A] [c]ourt should determine and give to the alleged implied contract “the effect which the parties, as fair and reasonable men, presumably would have agreed upon if, having in mind the possibility of the *386situation which has arisen, they had contracted expressly thereto.” 12 Am.Jur. 766.

See Mecier v. Broadfoot, 584 So.2d 159, 161 (Fla. 1st DCA 1991).

Common examples of contracts implied in fact are where a person performs services at another’s request, or “where services are rendered by one person for another without his expressed request, but with his knowledge, and under circumstances” fairly raising the presumption that the parties understood and intended that compensation was to be paid. Lewis v. Meginniss, 30 Fla. 419, 12 So. 19, 21 (1892); Tipper, 281 So.2d at 13. In these circumstances, the law implies the promise to pay a reasonable amount for the services. Lewis, 12 So. at 21; Lamoureux v. Lamoureux, 59 So.2d 9, 12 (Fla.1951); A.J. v. State, 677 So.2d 935, 937 (Fla. 4th DCA 1996); Dean v. Blank, 267 So.2d 670 (Fla. 4th DCA 1972); Solutec Corp. v. Young & Lawrence Assoc., Inc., 243 So.2d 60S, 606 (Fla. 4th DCA 1971).

A contract implied in law, or quasi contract, is not based upon the finding, by a process of implication from the facts, of an agreement between the parties. A contract implied in law is a legal fiction, an obligation created by the law without regard to the parties’ expression of assent by their words or conduct. 1 Corbin on Contracts § 1.20; Tipper, 281 So.2d at 13. The fiction was adopted to provide a remedy where one party was unjustly enriched, where that party received a benefit under circumstances that made it unjust to retain it without giving compensation. Tipper, 281 So.2d at 13; Variety Children’s Hosp. v. Vigliotti, 385 So.2d 1052, 1053 (Fla. 3d DCA 1980).

The elements of a cause of action for a quasi contract are that: (1) the plaintiff has conferred a benefit on the defendant; (2) the defendant has knowledge of the benefit; (3) the defendant has accepted or retained the benefit conferred and (4) the circumstances are such that it would be inequitable for the defendant to retain the benefit without paying fair value for it. Hillman Const. Corp. v. Wainer, 636 So.2d 576, 577 (Fla. 4th DCA 1994); Henry M. Butler, Inc. v. Trizec Properties, Inc., 524 So.2d 710, 711-12 (Fla. 2d DCA 1988). Because the basis for recovery does not turn on the finding of an enforceable agreement, there may be recovery under a contract implied in law even where the parties had no dealings at all with each other. See Variety Children’s Hosp., 385 So.2d at 1053. This is unlike a contract implied in fact which must arise from the interaction of the parties or their agents.

To describe the cause of action encompassed by a contract implied in law, Florida courts have synonymously used a number of different terms — “quasi contract,”1 “unjust enrichment,”2 “restitution,”3 “constructive contract,”4 and “quantum meruit.”5 This profusion of terminology has its roots in legal history. Concerned about the confusion between contracts implied in law and fact, two legal scholars sought to “extirpate the term ‘contract implied in law’ from legal usage and to substitute for it the term ‘quasi contract’.” 1 Corbin on Contracts § 1.20. As Corbin explains, although the term “quasi contract” took hold, “the older term successfully resisted extirpation to the further confusion of law students and lawyers.” Id.

The term “quantum meruit” derives from common law forms of pleading. The action *387of assumpsit was available for the “recovery of damages for the breach or non-performance of a simple contract ... or upon a contract implied by law from the acts or conduct of the parties.” Hazen v. Cobb, 96 Fla. 151,117 So. 853, 857 (1928). There were two divisions of assumpsit, general, upon the common counts, and special. Id. In general assumpsit, on the common counts, only an implied contract could be the basis of the action. Id. The common counts were “abbreviated and stereotyped statements” that the defendant was indebted to the plaintiff for a variety of commonly recurring reasons, such as goods sold and delivered or work and labor done. 1 Corbin on Contracts § 1.18. The count asking judgment for work done was quantum meruit; for goods sold the count was quantum valebant. Id. The common counts were used to enforce contracts implied both in law and in fact. Because so many quasi contract actions were brought in the common counts, and because courts and lawyers were not careful to draw the distinction, the term “quantum meruit” is often used synonymously with the term “quasi contract.” Id. at § 1.20.

At trial in this case, Commerce’s attorney understood “quantum meruit” to mean a contract implied in fact. Equity and the trial court were proceeding under a theory of quasi contract. This confusion over “quantum meruit” is understandable, since there are cases to support both positions. For example, in Rite-Way Painting & Plastering, Inc. v. Tetor, 582 So.2d 15, 17 (Fla. 2d DCA), review dismissed, 587 So.2d 1329 (Fla.1991), the court noted that “contracts implied in fact, such as an action in quantum meruit, require the consent of the parties.” Similarly, in Dean v. Blank, 267 So.2d 670, 671 (Fla. 4th DCA 1972), when this court characterized the action as an “assumpsit on a quantum meruit,” we were referring to a contract implied in fact. On the other hand, Aldebot v. Story, 534 So.2d 1216, 1217 (Fla. 3d DCA 1988), declares that “[qjuantum meruit describes the extent of liability on a contract implied in law.” This court, in Maloney v. Therm Alum Industries, Corp., 636 So.2d 767, 769 (Fla. 4th DCA), rev. denied, 645 So.2d 456 (Fla.1994), used the term “quantum meruit” synonymously with “unjust enrichment.” One ease, Tobin & Tobin Insurance Agency, Inc. v. Zeskind, 315 So.2d 518 (Fla. 3d DCA 1975), suggests that the test for a quasi contract is the one appropriate for a contract implied in fact — “whether or not ... services were performed under circumstances in which the parties understood and intended that compensation was to be paid.” Id. at 520.

The blurring of the distinction between contract implied in fact and quasi contract has been exacerbated by the potential for both theories to apply to the same factual setting. For example, a common form of contract implied in fact is where one party has performed services at the request of another without discussion of compensation. These circumstances justify the inference of a promise to pay a reasonable amount for the service. The enforceability of this obligation turns on the implied promise, not on whether the defendant has received something of value. A contract implied in fact can be enforced even where a defendant has received nothing of value.

However, where there is no enforceable express or implied in fact contract but where the defendant has received something of value, or has otherwise benefited from the service supplied, recovery under a quasi contractual theory may be appropriate. See Lamborn v. Slack, 107 So.2d 277 (Fla. 2d DCA 1958) (in which the court found a contract implied in fact but discussed the issue using quasi contractual principles). When properly raised in the pleadings, this overlapping of theories may require a fact finder to view the facts as they might apply to both. 3 Corbin on Contracts § 561(1960).

Contrary to Commerce’s belief at trial, Equity was asserting a quasi contract claim against it, not a contract implied in fact.

A Subcontractor’s Quasi Contract Action Against an Owner

In Maloney, 636 So.2d at 767, this court considered the availability of a quasi contract theory to a construction subcontractor seeking recovery against an owner of property, where there had been no dealings between the owner and the subcontractor. Pursuant to a contract with the general contractor, the *388subcontractor in Maloney furnished glass walls, windows and doors for the construction of an office building. The subcontractor was not paid in full for its work. The general contractor and subcontractor submitted their claims against each other to arbitration. In the circuit court action, the subcontractor sought to recover damages against the owner on a quasi contract theory. Id. at 768. Relying on two out-of-state cases, this court held that a subcontractor could maintain a quasi contract action against an owner, provided that it pled and proved two elements to establish that the enrichment of the owner was unjust — that the subcontractor had exhausted all remedies against the general contractor and still remained unpaid and that the owner had not given consideration to any person for the improvements furnished by the subcontractor. Id. at 769-70. We quoted the following passage from Paschall’s Inc. v. Dozier, 219 Tenn. 45, 407 S.W.2d 150, 155 (1966):

The most significant requirement for a recovery on quasi contract is that the enrichment to the defendant be unjust. Consequently, if the landowner has given any consideration to any person for the improvements, it would not be unjust for him to retain the benefit without paying the furnisher. Also, we think that before recovery can be had against the landowner on an unjust enrichment theory, the fur-nisher of the materials and labor must have exhausted his remedies against the person with whom he had contracted, and still has not received the reasonable value of his services.

Id. 636 So.2d at 770. Maloney reversed the judgment for the contractor based upon quasi contract because the status of the subcontractor’s arbitration claim with the general contractor was not established at trial. Under these circumstances, we held that it was “premature and therefore improper to permit the subcontractor to pursue” a quasi contract claim against the owner. Id. at 769.

In Gene B. Glide Co., 651 So.2d at 190, we affirmed a judgment in favor of a property owner who had been sued by a subcontractor on a quasi contract theory. We held that an unjust enrichment cannot exist “where payment has been made for the benefit conferred.” The payment to which we referred was the owner’s payment to the general contractor on the construction contract. See Yates v. Bernard’s Carpet and Draperies, Inc., 481 So.2d 515 (Fla. 4th DCA 1985); Seegers v. Sprague, 70 Wis.2d 997, 236 N.W.2d 227 (1975). We observed in Yates that while it may be unjust that a subcontractor was not paid for its services, that injustice was not visited upon the subcontractor by the owner who paid the general contractor in full, but by the general contractor who hired the sub. 481 So.2d at 516. The law of quasi contract does not require an owner to pay twice.

There is language in Maloney which can be read to suggest that we imposed a third limitation on the ability of a subcontractor to maintain a quasi contract claim against an owner. Maloney quotes two paragraphs from Construction and Design Law § 8.80.1(1989), which include the following sentence:

First, the subcontractor may not recover an equitable remedy if he has failed his legal remedies, such as a statutory mechanic’s lien.

636 So.2d at 770. We expressly recede from this statement in Maloney because it is without support in Florida law.

Florida’s construction lien statute does not purport to be the exclusive remedy for a lienor, such as a subcontractor, against an owner. Section 713.30, Florida Statutes (1995), provides that the construction lien part of Chapter 713 “shall be cumulative to other existing remedies.” The plain language of the statute does not supersede any remedies available to a party seeking payment. St. Regis Paper Co. v. Quality Pipeline, Inc., 469 So.2d 820, 822-23 (Fla. 2d DCA 1985). Applying section 713.30, the third district rejected the argument that a materialman’s failure to perfect a statutory lien left it without any remedy to recover for materials which it had furnished to a construction project. Peninsular Supply Co. v. C.B. Day Realty of Florida, Inc., 423 So.2d 500, 501-02 (Fla. 3d DCA 1982). As the Peninsular Supply court observed:

*389The purpose of the Mechanics’ Lien Law is to prevent an owner from being obligated to pay for an improvement more than once. It was not intended, nor shall we interpret it to permit an unjust enrichment.

Id. at 503 (citations omitted).

At least three Florida cases have allowed subcontractors who failed to perfect their liens to nonetheless maintain a quasi contract action against an owner. In Zaleznik, the second district upheld a roofing subcontractor’s unjust enrichment judgment against an owner, where the subcontractor had not perfected its mechanics’ lien because of its failure to timely serve the notice to owner. 576 So.2d at 778-80. Similarly, in Capital Construction Services, Inc. v. Rubinson, 541 So.2d 748 (Fla. 3d DCA 1989), the third district permitted a home improvement subcontractor to bring an unjust enrichment claim against an owner, even though it had failed to perfect its lien because of a failure to serve a notice of claim on the owner. See Rite-Way Painting & Plastering, Inc., 582 So.2d at 17-18.

The two out-of-state cases upon which we relied in Maloney both allowed quasi contractual recovery where a subcontractor had neglected to perfect a mechanics’ lien. The subcontractor in Paschall’s, Inc. failed to comply with Tennessee’s statutory requirements for maintaining a mechanic’s lien. 219 Tenn. 45, 407 S.W.2d at 152. The material-man in Tum-A-Lum Lumber v. Patrick, 95 Or.App. 719, 770 P.2d 964 (1989), could have filed a construction lien but did not. The Oregon appellate court reversed a judgment for the contractor, not because of the failure to pursue a lien remedy, but because the materialman did not allege and prove that it had exhausted its remedies against the general contractor. Id., 770 P.2d at 965.

Drawn from Paschall’s, Inc. and Tum-ALum, the two requirements that Maloney imposes on a subcontractor’s quasi contract action against an owner — exhaustion of remedies against the contractor and the owner’s receipt of the benefit conferred without paying consideration to anyone — limit the cause of action to those situations where the enrichment of the owner is truly unjust when compared to the uncompensated subcontractor. The contractor with whom the subcontractor is in privity is always the pocket of first resort. Moreover, the owner can be liable only where it received a windfall benefit, something for nothing.

By our reliance on Paschall’s, Inc. and Tum-A-Lum, we intended in Maloney to align ourselves with that line of cases which allow a subcontractor’s recovery in quasi contract against an owner, even where the subcontractor has failed to perfect its construction lien. Karon v. Kellogg, 195 Minn. 134, 261 N.W. 861 (1935); Ayotte Bros. Constr. Co. v. Finney, 42 Conn.App. 578, 680 A.2d 330 (1996); Costanzo v. Stewart, 9 Ariz.App. 430, 453 P.2d 526 (1969); Rees, Weaver & Co. v. M.B.C. Paper Mill Corp., 267 Pa.Super. 148, 406 A.2d 562 (1979); International Paper Co. v. Futhey, 788 S.W.2d 303, 306 (Mo.App.1990); Kazmier v. Thom, 63 Ohio App.2d 29, 408 N.E.2d 694 (1978); see Pendleton v. Sard, 297 A.2d 889, 895 (Me.1972).

Significantly, the rationales which underlie many of the cases making a construction lien the exclusive remedy of a subcontractor not in privity with an owner have no application in Florida. The construction lien statutes of some states preclude, or have been construed to preclude, the maintenance of a quasi contract claim. See Donnybrook Building Supply Co., Inc. v. Alaska Nat’l Bank of the North, 736 P.2d 1147, 1153-54 (Alaska 1987); Season Comfort Corp. v. Ben A Borenstein Co., 281 Ill.App.3d 648, 211 Ill.Dec. 682, 655 N.E.2d 1065 (1995). Florida’s construction lien statute contains no similar limitation on a lienor’s potential remedies. Other cases are based in large part on the failure of a subcontractor to prove one of the elements necessary to a subcontractor’s quasi contract claim. See Guldberg v. Greenfield, 259 Iowa 873, 146 N.W.2d 298, 305 (1966) (owner paid prime contractor in full); Seegers v. Sprague, 70 Wis.2d 997, 236 N.W.2d 227, 231 (1975) (owner’s payments to general contractor did not leave him “enriched”); Morrisville Lumber Co. v. Okcuoglu, 148 Vt. 180, 531 A.2d 887 (1987).

Finally, some eases rely on the principle that there can be no remedy in equity when the lien statute provides an adequate remedy at law. Southtown Plumbing, Inc. v. Har- *390 Ned Dumber Co., Inc., 493 N.W.2d 137 (Minn.App.1992); Season Comfort Corp., 211 Ill.Dec. 682, 655 N.E.2d at 1071. These cases turn on the determination that unjust enrichment is an equitable cause of action. However, in Florida, as was demonstrated above, all implied contract actions were part of the action of assumpsit, which was an action at law under the common law. E.g., Boyce Constr. Corp. v. District Bd. of Trustees, 414 So.2d 634, 637, n. 1 (Fla. 5th DCA 1982); Carter v. Suggs, 190 So.2d 784, 788 (Fla. 1st DCA 1966). Although some Florida courts have described quasi contracts as being “equitable in nature,” e. g., Gene B. Glide Co., Inc., 651 So.2d at 190, the term has been used in the sense of “fairness,” to describe that quality which makes an enrichment unjust, and not as a reference to the equity side of the court.

Reversal is Required Under the Facts of this Case

In this case, Equity did not prove at trial that Commerce had not made payment to any party for the benefits conferred on the property by Equity. This was not an affirmative defense, but an essential element of a quasi contract claim by a subcontractor against an owner. See International Paper Co., 788 S.W.2d at 306. Had Commerce moved for an involuntary dismissal on this ground, the motion should have been granted. Contrary to the trial court’s evidentiary ruling, Commerce’s attempt to prove that it had paid $64,097 directly to subcontractors for work on the building was relevant to issues in this case. What Commerce expended on this project was central to Equity’s cause of action. Commerce contended that these payments were for work covered under the construction contract for which the subcontractors had not been paid by the general contractor. If the $64,097 is added to the $256,894 that Commerce paid to the general contractor, then the total amount Commerce spent on the project exceeded the contract price for the improvements. As we have observed, where an owner has given consideration for the subcontractor’s work by paying out the contract price for the work, an unpaid subcontractor’s claim that the owner has been unjustly enriched must fail.

The trial court’s reliance on Zaleznik was misplaced. In that case it was undisputed that the owner received over $70,000 in construction work for which it paid no one. What Commerce paid out on this project was not fully litigated below, so whether its “enrichment” was “unjust” is an open question.

The judgment appealed is reversed, and the cause is remanded to the trial court to take additional evidence from the parties on whether Commerce made payment to or on behalf of its general contractor covering the benefits Equity conferred on the subject property. Equity shall have the burden of proving its claim of a contract implied in law that Commerce has failed to make such payment by the greater weight of the evidence. If the court shall determine that Commerce has not paid anyone for the benefits conferred by Equity, then it shall enter judgment for Equity; correspondingly, if the court shall determine that Equity has failed to prove that Commerce did not make such payment, then the court shall enter judgment for Commerce.

GUNTHER, C.J., and GLICKSTEIN, DELL, STONE, WARNER, POLEN, FARMER, KLEIN, PARIENTE, STEVENSON and SHAHOOD, JJ., concur.

SHIRLEY S. ABRAHAMSON, J.

This is an appeal from a judgment of the circuit court for Dane County, William D. Byrne, Judge, dismissing Sue Ann Watts’ amended complaint, pursuant to sec. *510802.06(2)(f), Stats. 1985-86, for failure to state a claim upon which relief may be granted. This court took jurisdiction of the appeal upon certification by the court of appeals under sec. (Rule) 809.61, Stats. 1985-86. For the reasons set forth, we hold that the complaint states a claim upon which relief may be granted. Accordingly, we reverse the judgment of the circuit court and remand the cause to the circuit court for further proceedings consistent with this opinion.

The case involves a dispute between Sue Ann Evans Watts, the plaintiff, and James Watts, the defendant, over their respective interests in property accumulated during their nonmarital cohabitation relationship which spanned 12 years and produced two children. The case presents an issue of first impression and comes to this court at the pleading stage of the case, before trial and before the facts have been determined.

The plaintiff asked the circuit court to order an accounting of the defendant’s personal and business assets accumulated between June 1969 through December 1981 (the duration of the parties’ cohabitation) and to determine plaintiffs share of this property. The circuit court’s dismissal of plaintiffs amended complaint is the subject of this appeal. The plaintiff rests her claim for an accounting and a share in the accumulated property on the following legal theories: (1) she is entitled to an equitable division of property under sec. 767.255, Stats. 1985-86; (2) the defendant is estopped to assert as a defense to plaintiffs claim under sec. 767.255, that the parties are not married; (3) the plaintiff is entitled to damages for defendant’s breach of an express contract or an implied-in-fact contract between the parties; (4) the defendant holds the accumulated property under a constructive trust *511based upon unjust enrichment; and (5) the plaintiff is entitled to partition of the parties’ real and personal property pursuant to the partition statutes, secs. 820.01 and 842.02(1), 1985-86, and common law principles of partition.1

The circuit court dismissed the amended complaint, concluding that sec. 767.255, Stats. 1985-86, authorizing a court to divide property, does not apply to the division of property between unmarried persons. Without analyzing the four other legal theories upon which the plaintiff rests her claim, the circuit court simply concluded that the legislature, not the court, should provide relief to parties who have accumulated property in nonmarital cohabitation relationships. The circuit court gave no further explanation for its decision.

We agree with the circuit court that the legislature did not intend sec. 767.255 to apply to an unmarried couple. We disagree with the circuit court’s implicit conclusion that courts cannot or should not, without express authorization from the legislature, divide property between persons who have engaged in nonmarital cohabitation. Courts traditionally have settled contract and property disputes between unmarried persons, some of whom have cohabited. Nonmarital cohabitation does not render every agreement between the cohabiting parties illegal and does not automatically preclude one of the parties from seeking judicial relief, such as statutory or common law partition, damages for breach of express or *512implied contract, constructive trust and quantum merit where the party alleges, and later proves, facts supporting the legal theory. The issue for the court in each case is whether the complaining party has set forth any legally cognizable claim.

A motion to dismiss a complaint for failure to state a claim tests the legal sufficiency of the complaint. All facts pleaded and all reasonable inferences therefrom are admitted as true, but only for the purpose of testing the legal sufficiency of the claim, not for trial. Scarpaci v. Milwaukee County, 96 Wis. 2d 663, 669, 292 N.W.2d 816, 18 A.L.R.4th 829 (1980). A complaint should not be dismissed for failure to state a claim unless it appears certain that no relief can be granted under any set of facts that a plaintiff can prove in support of his or her allegations. Kranzush v. Badger State Mutual Cas. Co., 103 Wis. 2d 56, 82, 307 N.W.2d 256 (1981). The pleadings are to be liberally construed to do substantial justice to the parties. Sec. 802.02(6), Stats. 1985-86; Scarpaci, supra, 96 Wis. 2d at 669. Whether a complaint states a claim upon which relief may be granted is a question of law and this court need not defer to the circuit court’s determination.

We test the sufficiency of the plaintiffs amended complaint by first setting forth the facts asserted in the complaint and then analyzing each of the five legal theories upon which the plaintiff rests her claim for relief.

H-f

The plaintiff commenced this action in 1982. The plaintiffs amended complaint alleges the following *513facts, which for purposes of this appeal must be accepted as true. The plaintiff and the defendant met in 1967, when she was 19 years old, was living with her parents and was working full time as a nurse’s aide in preparation for a nursing career. Shortly after the parties met, the defendant persuaded the plaintiff to move into an apartment paid for by him and to quit her job. According to the amended complaint, the defendant "indicated” to the plaintiff that he would provide for her.

Early in 1969, the parties began living together in a "marriage-like” relationship, holding themselves out to the public as husband and wife. The plaintiff assumed the defendant’s surname as her own. Subsequently, she gave birth to two children who were also given the defendant’s surname. The parties filed joint income tax returns and maintained joint bank accounts asserting that they were husband and wife. The defendant insured the plaintiff as his wife on his medical insurance policy. He also took out a life insurance policy on her as his wife, naming himself as the beneficiary. The parties purchased real and personal property as husband and wife. The plaintiff executed documents and obligated herself on promissory notes to lending institutions as the defendant’s wife.

During their relationship, the plaintiff contributed childcare and homemaking services, including cleaning, cooking, laundering, shopping, running errands, and maintaining the grounds surrounding the parties’ home. Additionally, the plaintiff contributed personal property to the relationship which she owned at the beginning of the relationship or acquired through gifts or purchases during the relationship. She served as hostess for the defendant for social and *514business-related events. The amended complaint further asserts that periodically, between 1969 and 1975, the plaintiff cooked and cleaned for the defendant and his employees while his business, a landscaping service, was building and landscaping a golf course.

From 1973 to 1976, the plaintiff worked 20-25 hours per week at the defendant’s office, performing duties as a receptionist, typist, and assistant bookkeeper. From 1976 to 1981, the plaintiff worked 40-60 hours per week at a business she started with the defendant’s sister-in-law, then continued and managed herself after the dissolution of that partnership. The plaintiff further alleges that in 1981 the defendant made their relationship so intolerable that she was forced to move from their home and their relationship was irretrievably broken. Subsequently, the defendant barred the plaintiff from returning to her business.

The plaintiff alleges that during the parties’ relationship, and because of her domestic and business contributions, the business and personal wealth of the couple increased. Furthermore, the plaintiff alleges that she never received any compensation for these contributions to the relationship and that the defendant indicated to the plaintiff both orally and through his conduct that he considered her to be his wife and that she would share equally in the increased wealth.

The plaintiff asserts that since the breakdown of the relationship the defendant has refused to share equally with her the wealth accumulated through their joint efforts or to compensate her in any way for her contributions to the relationship.

hH I — I

The plaintiffs first legal theory to support her claim against the property accumulated during the *515cohabitation is that the plaintiff, defendant, and their children constitute a "family,” thus entitling the plaintiff to bring an action for property division under sec. 767.02(l)(h), Stats. 1985-86,2 and to have the court "divide the property of the parties and divest and transfer the title of any such property” pursuant to sec. 767.255, 1985-86.3

The plaintiff asserts that the legislature intended secs. 767.02(l)(h) and 767.255, which usually govern division of property between married persons in divorce or legal separation proceedings, to govern a property division action between unmarried cohabitants who constitute a family. The plaintiff points out that secs. 767.02(l)(h) and 767.255 are part of chapter 767, which is entitled "Actions Affecting the Family,” and that in 1979 the legislature deliberately changed the title of the chapter from "Actions Affecting Marriage” to "Actions Affecting the Family.”4 The *516legislature has failed to provide any definition for "family” under ch. 767, or for that matter under any chapter of the Family Code.5

The plaintiff relies on Warden v. Warden, 36 Wash. App. 693, 676 P.2d 1037 (1984), to support her claim for relief under secs. 767.02(l)(h) and 767.255. In Warden, the Washington court of appeals held that the statute providing guidelines for property division upon dissolution of marriage, legal separation, etc., could also be applied to divide property acquired by unmarried cohabitants in what was "tantamount to a marital family except for a legal marriage.” Warden, 36 Wash. App. at 698, 676 P.2d at 1039. Warden is remarkably similar on its facts to the instant case. The parties in Warden had lived together for 11 years, had two children, held themselves out as husband and wife, acquired property together, and filed joint tax returns. On those facts, the Washington court of appeals held that the trial court correctly treated the parties as a "family” within the meaning of the Washington marriage dissolution statute. In addition, the trial court had considered such statutory factors as the length and purpose of the parties’ relationship, their two children, and the contributions and future *517prospects of each in determining their respective shares of the property.

Although the Warden case provides support for the plaintiffs argument, most courts which have addressed the issue of whether marriage dissolution statutes provide relief to unmarried cohabitants have either rejected or avoided application of a marriage dissolution statute to unmarried cohabitants. See, e.g., Marvin v. Marvin, 18 Cal. 3d 660, 681, 134 Cal. Rptr. 815, 557 P.2d 106 (1976); Metten v. Benge, 366 N.W.2d 577, 579-80 (Iowa 1985); Glasgo v. Glasgo, 410 N.E.2d 1325, 1331 (Ind. Ct. App. 1980); Kozlowski v. Kozlowski, 80 N.J. 378, 383, 403 A.2d 902, 905 (1979).6

The purpose of statutory construction is to ascertain the intent of the legislature and give effect to that intent. If the language of the statute is unclear, the court will endeavor to discover the legislature’s intent as disclosed by the scope, history, context, subject matter and purpose of the statute. Ball v. District No. 4, Area Bd., 117 Wis. 2d 529, 538, 345 N.W.2d 389 (1984).

While we agree with the plaintiff that some provisions in ch. 767 govern a mother, father, and their children, regardless of marriage,7 upon our analysis of sec. 767.255 and the Family Code, we *518conclude that the legislature did not intend sec. 767.255 to extend to unmarried cohabitants.

When the legislature added what is now sec. 767.255 in 1977 as part of the no fault divorce bill, it stated that its "sole purpose” was "to promote an equitable and reasonable adjudication of the economic and custodial issues involved in marriage relationships.”8 (Emphasis supplied.) Moreover, the unambiguous language of sec. 767.255 and the criteria for property division listed in sec. 767.255 plainly contemplate that the parties who are governed by that section are or have been married.9 Finally, secs. 767.02(l)(h) and 767.255 were both in existence before the 1979 legislature changed the title of ch. 767 from "Marriage” to "Family.” A change in the title of the chapter would not change the import of these statutory provisions.

Furthermore, the Family Code emphasizes marriage. The entire Family Code, of which ch. 767 is an integral part, is governed generally by the provisions of sec. 765.001(2), which states in part that "[i]t is the intent of chs. 765 to 768 to promote the stability and *519best interests of marriage and the family. ... Marriage is the institution that is the foundation of family and of society. Its stability is basic to morality and civilization, and of vital interest to society and the state.” (Emphasis supplied.) Section 765.001(3) further states that "[c]hapters 765 to 768 shall be liberally construed to effect the objectives of sub. (2).” The conclusion is almost inescapable from this language in sec. 765.001 (2), (3) that the legislature not only intended chs. 765-768 to protect and promote the "family,” but also intended "family” to be within the "marriage” context.10

The statutory prohibition of marriages which do not conform to statutory requirements, sec. 765.21, Stats. 1985-86,11 further suggests that the legislature intended that the Family Code applies, for the most part, to those couples who have been joined in marriage according to law.

On the basis of our analysis of sec. 767.255 and the Family Code which revealed no clear evidence that the legislature intended sec. 767.255 to apply to *520unmarried persons, we decline the invitation to extend the application of sec. 767.255 to unmarried cohabitants. We therefore hold that the plaintiff has not stated a claim for property division under sec. 767.255.

The plaintiff urges that the defendant, as a result of his own words and conduct, be estopped from asserting the lack of a legal marriage as a defense against the plaintiffs claim for property division under sec. 767.255. As support for her position, the plaintiff cites a 1905 Tennessee case and two law review articles that do no more than cite to the Tennessee case law.12

Although the defendant has not discussed this legal theory, we conclude that the doctrine of "marriage by estoppel” should not be applied in this case. We reach this result primarily because we have already concluded that the legislature did not intend sec. 767.255 to govern property division between unmarried cohabitants.13 We do not think the parties’ *521conduct should place them within the ambit of a statute which the legislature did not intend to govern them.

>

The plaintiffs third legal theory on which her claim rests is that she and the defendant had a contract to share equally the property accumulated during their relationship. The essence of the complaint is that the parties had a contract, either an express or implied in fact contract, which the defendant breached.

Wisconsin courts have long recognized the importance of freedom of contract and have endeavored to protect the right to contract. A contract will not be enforced, however, if it violates public policy. A declaration that the contract is against public policy should be made only after a careful balancing, in the light of all the circumstances, of the interest in enforcing a particular promise against the policy against enforcement. Courts should be reluctant to frustrate a party’s reasonable expectations without a corresponding benefit to be gained in deterring "misconduct” or avoiding inappropriate use of the judicial system. Merten v. Nathan, 108 Wis. 2d 205, 211, 321 N.W.2d 173, 177 (1982); Continental Ins. Co. v. Daily Express, Inc., 68 Wis. 2d 581, 589, 229 N.W.2d 617 (1975); Schaal v. Great Lakes Mutual Fire & Marine Ins. Co., 6 Wis. 2d 350, 356, 94 N.W.2d 646, 649 (1959); Trumpf v. Shoudy, 166 Wis. 353, 359, 164 N.W. 454, *522456 (1917); Restatement (Second) of Contracts sec. 178 comments b and e (1981).

The defendant appears to attack the plaintiffs contract theory on three grounds. First, the defendant apparently asserts that the court’s recognition of plaintiffs contract claim for a share of the parties’ property contravenes the Wisconsin Family Code. Second, the defendant asserts that the legislature, not the courts, should determine the property and contract rights of unmarried cohabitating parties. Third, the defendant intimates that the parties’ relationship was immoral and illegal and that any recognition of a contract between the parties or plaintiffs claim for a share of the property accumulated during the cohabitation contravenes public policy.

The defendant rests his argument that judicial recognition of a contract between unmarried cohabitants for property division violates the Wisconsin Family Code on Hewitt v. Hewitt, 77 Ill. 2d 49, 31 Ill. Dec. 827, 394 N.E.2d 1204, 3 A.L.R.4th 1 (1979). In Hewitt the Illinois Supreme Court concluded that judicial recognition of mutual property rights between unmarried cohabitants would violate the policy of the Illinois Marriage and Dissolution Act because enhancing the attractiveness of a private arrangement contravenes the Act’s policy of stengthening and preserving the integrity of marriage. The Illinois court concluded that allowing such a contract claim would weaken the sanctity of marriage, put in doubt the rights of inheritance, and open the door to false pretenses of marriage. Hewitt, 77 Ill. 2d at 65, 394 N.E.2d at 1211.

We agree with Professor Prince and other commentators that the Hewitt court made an unsupportable inferential leap when it found that cohabitation *523agreements run contrary to statutory policy and that the Hewitt court's approach is patently inconsistent with the principle that public policy limits are to be narrowly and exactly applied.14

Furthermore, the Illinois statutes upon which the Illinois supreme court rested its decision are distinguishable from the Wisconsin statutes. The Illinois supreme court relied on the fact that Illinois still retained "fault” divorce and that cohabitation was unlawful. By contrast, Wisconsin abolished "fault” in divorce in 1977 and abolished criminal sanctions for nonmarital cohabitation in 1983.15

The defendant has failed to persuade this court that enforcing an express or implied in fact contract between these parties would in fact violate the Wisconsin Family Code. The Family Code, chs. 765-768, Stats. 1985-86, is intended to promote the institution of marriage and the family. We find no indication, however, that the Wisconsin legislature intended the Family Code to restrict in any way a court’s resolution *524of property or contract disputes between unmarried cohabitants.

The defendant also urges that if the court is not willing to say that the Family Code proscribes contracts between unmarried cohabiting parties, then the court should refuse to resolve the contract and property rights of unmarried cohabitants without legislative guidance. The defendant asserts that this court should conclude, as the Hewitt court did, that the task of determining the rights of cohabiting parties is too complex and difficult for the court and should be left to the legislature. We are not persuaded by the defendant’s argument. Courts have traditionally developed principles of contract and property law through the case-by-case method of the common law. While ultimately the legislature may resolve the problems raised by unmarried cohabiting parties, we are not persuaded that the court should refrain from resolving such disputes until the legislature gives us direction.16 Our survey of the cases in other jurisdictions reveals that Hewitt is not widely followed.

We turn to the defendant’s third point, namely, that any contract between the parties regarding property division contravenes public policy because the contract is based on immoral or illegal sexual activity. The defendant does not appear to make this *525argument directly. It is not well developed in the brief, and at oral argument defendant’s attorney indicated that he did not find this argument persuasive in light of the current community mores, the substantial number of unmarried people who cohabit, and the legislature’s abolition of criminal sanctions for cohabitation. Although the parties in the instant case cohabited at a time when cohabitation was illegal, the defendant’s counsel at oral argument thought that the present law should govern this aspect of the case. Because illegal sexual activity has posed a problem for courts in contract actions, we discuss this issue even though the defendarit did not emphasize it.

Courts have generally refused to enforce contracts for which the sole consideration is sexual relations, sometimes referred to as "meretricious” relationships. See In Matter of Estate of Steffes, 95 Wis. 2d 490, 514, 290 N.W.2d 697 (1980), citing Restatement of Contracts sec. 589 (1932). Courts distinguish, however, between contracts that are explicitly and inseparably founded on sexual services and those that are not. This court, and numerous other courts,17 have concluded that "a bargain between two people is not illegal merely because there is an illicit relationship between the two so long as the bargain is independent of the illicit relationship and the illicit relationship does not constitute any part of the consideration bargained for and is not a condition of the bargain.” Steffes, supra, 95 Wis. 2d at 514.

*526While not condoning the illicit sexual relationship of the parties, many courts have recognized that the result of a court’s refusal to enforce contract and property rights between unmarried cohabitants is that one party keeps all or most of the assets accumulated during the relationship, while the other party, no more or less "guilty,” is deprived of property which he or she has helped to accumulate. See e.g., Glasgo v. Glasgo, 410 N.E.2d 1325, 1330 (Ind. App. 1980); Latham v. Latham, 274 Or. 421, 426, 547 P.2d 144 (Or. 1976); Marvin v. Marvin, supra, 18 Cal. 3d at 682, 134 Cal. Rptr at 830, 557 P.2d at 121; West v. Knowles, 50 Wash. 2d 311, 315-16, 311 P.2d 689 (1957).

The Hewitt decision, which leaves one party to the relationship enriched at the expense of the other party who had contributed to the acquisition of the property, has often been criticized by courts and commentators as being unduly harsh.18 Moreover, courts recognize that their refusal to enforce what are in other contexts clearly lawful promises will not undo the parties’ relationship and may not discourage others from entering into such relationships. Tyranski v. Piggins, 44 Mich. App. 570, 577, 205 N.W.2d 595 (1973). A harsh, per se rule that the contract and property rights of unmarried cohabitating parties will not be recognized might actually encourage a partner with greater income potential to avoid marriage in order to retain all accumulated assets, leaving the other party with nothing. See Marvin v. Marvin, *527 supra, 18 Cal. 3d at 683, 134 Cal. Rptr. at 831, 557 P.2d at 122.

One Wisconsin case which requires discussion in this context is Smith v. Smith, 255 Wis. 96, 38 N.W.2d 12, 14 A.L.R.2d 914 (1949). In Smith, one of the parties to a common law marriage discovered that such marriages were not legal, demanded that the defendant marry her, was refused, and sought equitable property division. The court denied her claim. Although we find the harsh result in Smith troubling, we need not overrule it because Smith is distinguishable from the instant case.

The plaintiff in Smith was seeking equitable property division under the marriage dissolution statutes. Like the court in Smith, we have decided that those statutes are unavailable to an unmarried person. The plaintiff in this case, however, rests her claim on theories of recovery other than those of the plaintiff in Smith. The Smith court ruled that the plaintiff had based her claim for property division solely on the fact of the couple’s illegal common law marriage. Smith, supra, 255 Wis. at 100. In other words, the plaintiff in that case had not alleged facts necessary to find that the couple had agreed to share their property, independent from their sexual relationship. Id.

In Smith, the problem was inadequate pleading by the plaintiff. In this case, the plaintiff has alleged many facts independent from the parties’ physical relationship which, if proven, would establish an express contract or an implied in fact contract that the parties agreed to share the property accumulated during the relationship.

*528The plaintiff has alleged that she quit her job and abandoned her career training upon the defendant’s promise to take care of her. A change in one party’s circumstances in performance of the agreement may imply an agreement between the parties. Steffes, supra, 95 Wis. 2d at 504; Tyranski, supra, 44 Mich. App. at 574, 205 N.W.2d at 597.

In addition, the plaintiff alleges that she performed housekeeping, childbearing, childrearing, and other services related to the maintenance of the parties’ home, in addition to various services for the defendant’s business and her own business, for which she received no compensation. Courts have recognized that money, property, or services (including housekeeping or childrearing) may constitute adequate consideration independent of the parties’ sexual relationship to support an agreement to share or transfer property. See Tyranski, supra, 44 Mich. App. at 574, 205 N.W.2d at 597; Carlson v. Olson, 256 N.W.2d 249, 253-254 (Minn. 1977); Carroll v. Lee, 148 Ariz. 10, 14, 712 P.2d 923, 927 (1986); Steffes, supra 95 Wis. 2d at 501.19

*529According to the plaintiffs complaint, the parties cohabited for more than twelve years, held joint bank accounts, made joint purchases, filed joint income tax returns, and were listed as husband and wife on other legal documents. Courts have held that such a relationship and "joint acts of a financial nature can give rise to an inference that the parties intended to share equally.” Beal v. Beal, 282 Or. 115, 122, 577 P.2d 507, 510 (1978). The joint ownership of property and the filing of joint income tax returns strongly implies that the parties intended their relationship to be in the nature of a joint enterprise, financially as well as personally. See Beal, 282 Or. at 122, 577 P.2d at 510; Warden v. Warden, supra, 36 Wash. App. at 696-97, 676 P.2d at 1038.

Having reviewed the complaint and surveyed the law in this and other jurisdictions, we hold that the Family Code does not preclude an unmarried cohabitant from asserting contract and property claims against the other party to the cohabitation. We further conclude that public policy does not necessarily preclude an unmarried cohabitant from asserting a contract claim against the other party to the cohabitation so long as the claim exists independently of the sexual relationship and is supported by separate consideration. Accordingly, we conclude that the plaintiff in this case has pleaded the facts necessary to state a claim for damages resulting from the defendant’s breach of an express or an implied in fact contract to share with the plaintiff the property accumulated through the efforts of both parties during their relationship. Once again, we do not judge the merits of the plaintiffs claim; we merely hold that she be given her day in court to prove her claim.

*530V.

The plaintiffs fourth theory of recovery involves unjust enrichment. Essentially, she alleges that the defendant accepted and retained the benefit of services she provided knowing that she expected to share equally in the wealth accumulated during their relationship. She argues that it is unfair for the defendant to retain all the assets they accumulated under these circumstances and that a constructive trust should be imposed on the property as a result of the defendant’s unjust enrichment. In his brief, the defendant does not attack specifically either the legal theory or the factual allegations made by the plaintiff.

Unlike claims for breach of an express or implied in fact contract, a claim of unjust enrichment does not arise out of an agreement entered into by the parties. Rather, an action for recovery based upon unjust enrichment is grounded on the moral principle that one who has received a benefit has a duty to make restitution where retaining such a benefit would be unjust. Puttkammer v. Minth, 83 Wis. 2d 686, 689, 266 N.W.2d 361, 363 (1978).

Because no express or implied in fact agreement exists between the parties, recovery based upon unjust enrichment is sometimes referred to as "quasi contract,” or contract "implied in law” rather than "implied in fact.” Quasi contracts are obligations created by law to prevent injustice. Shellse v. City of Mayville, 223 Wis. 624, 632, 271 N.W.2d 643 (1937).20

*531In Wisconsin, an action for unjust enrichment, or quasi contract, is based upon proof of three elements: (1) a benefit conferred on the defendant by the plaintiff, (2) appreciation or knowledge by the defendant of the benefit, and (3) acceptance or retention of the benefit by the defendant under circumstances making it inequitable for the defendant to retain the benefit. Puttkammer, supra, 83 Wis. 2d at 689; Wis. J.I. Civil No. 3028 (1981).

The plaintiff has cited no cases directly supporting actions in unjust enrichment by unmarried cohabitants, and the defendant provides no authority against it. This court has previously extended such relief to a party to a cohabitation in Estate of Fox, 178 Wis. 369, 190 N.W. 90, 31 A.L.R. 420 (1922). In Fox, the plaintiff was a woman who had believed in good faith that she was married to the decedent, when in fact she was not. The court found that the decedent "husband” had "by fraudulent representations induced the plaintiff to enter into the illicit relationship.” Fox, supra, 178 Wis. at 372. Under those circumstances, the court reasoned that it was "just and logical” to infer "from the nature of the transaction” that "the supposed husband [can be] held to have assumed to pay [for services rendered by his 'spouse’] because in point of law and equity it is just that he should pay.” Id.

In Fox, the court expressly refused to consider whether the same result would necessarily follow in other circumstances. Thus, Fox does not supply explicit support for the plaintiffs position here where she does not claim that she thought the parties were actually married.

The Steffes case, however, does provide additional support for the plaintiffs position. Although Steffes involved a claim for recovery in contract by an *532unmarried cohabitant for the value of services she performed for the decedent, the same equitable principles that governed that case would appear to apply in a case where the plaintiff is seeking recovery based upon unjust enrichment. In Steffes, the court cited with approval a statement by the trial judge that "[t]he question I have in mind is why should the estate be enriched when that man was just as much a part of the illicit relationship as she was and not let her have her fair dues. I don’t understand that law that would interpret unjust enrichment that way and deprive one and let the other benefit and do it on the basis that there was an illicit relationship but not equally held against the both...." Steffes, supra, 95 Wis. 2d at 508.

As part of his general argument, the defendant claims that the court should leave the parties to an illicit relationship such as the one in this case essentially as they are found, providing no relief at all to either party. For support, the defendant relies heavily on Hewitt v. Hewitt, supra, and the dissent in Steffes, to argue that courts should provide no relief whatsoever to unmarried cohabitants until the legislature provides specifically for it. See Steffes, supra, 95 Wis. 2d at 521-22 (Coffey, J., dissenting).

As we have discussed previously, allowing no relief at all to one party in a so-called "illicit” relationship effectively provides total relief to the other, by leaving that party owner of all the assets acquired through the efforts of both. Yet it cannot seriously be argued that the party retaining all the assets is less "guilty” than the other. Such a result is contrary to the principles of equity. Many courts have held, and we now so hold, that unmarried cohabitants may raise claims based upon unjust enrichment *533following the termination of their relationships where one of the parties attempts to retain an unreasonable amount of the property acquired through the efforts of both.21

In this case, the plaintiff alleges that she contributed both property and services to the parties’ relationship. She claims that because of these contributions the parties’ assets increased, but that she was never compensated for her contributions. She further alleges that the defendant, knowing that the plaintiff expected to share in the property accumulated, "accepted the services rendered to him by the plaintiff’ and that it would be unfair under the circumstances to allow him to retain everything while she receives nothing. We conclude that the facts alleged are sufficient to state a claim for recovery based upon unjust enrichment.

As part of the plaintiffs unjust enrichment claim, she has asked that a constructive trust be imposed on the assets that the defendant acquired during their relationship. A constructive trust is an equitable device created by law to prevent unjust enrichment. Wilharms v. Wilharms, 93 Wis. 2d 671, 678, 287 N.W.2d 779, 783 (1980). To state a claim on the theory of constructive trust the complaint must state facts sufficient to show (1) unjust enrichment and (2) abuse of a confidential relationship or some other form of *534unconscionable conduct. The latter element can be inferred from allegations in the complaint which show, for example, a family relationship, a close personal relatipnship, or the parties’ mutual trust. These facts are alleged in this complaint or may be inferred. Gorski v. Gorski, 82 Wis. 2d 248, 254-55, 262 N.W.2d 120 (1978). Therefore, we hold that if the plaintiff can prove the elements of unjust enrichment to the satisfaction of the circuit court, she will be entitled to demonstrate further that a constructive trust should be imposed as a remedy.

VI.

The plaintiffs last alternative legal theory on which her claim rests is the doctrine of partition. The plaintiff has asserted in her complaint a claim for partition of "all real and personal property accumulated by the couple during their relationship according to the plaintiffs interest therein and pursuant to Chapters 820 and 842, Wis. Stats.”

Chapter 820, Stats. 1985-86, provides for partition of personal property. Sec. 820.01 states in part: "When any of the owners of personal property in common shall desire to have a division and they are unable to agree upon the same an action may be commenced for that purpose.” Sec. 820.01 thus states on its face that anyone owning property "in common” with someone else can maintain an action for partition of personal property held by the parties. This section codifies a remedy long recognized at common law. See Laing v. Williams, 135 Wis. 253, 257, 115 N.W. 821, 128 Am. St. R. 1025 (1908) (courts of equity have general jurisdiction to maintain actions for partition of personalty *535and to provide any kind of relief necessary to do justice).

Ch. 842, Stats. 1985-86, provides for partition of interests in real property. Sec. 842.02(1) states in relevant part: "A person having an interest in real property jointly or in common with others may sue for judgment partitioning such interest unless an action for partition is prohibited elsewhere in the statutes ...." (Emphasis supplied.) Sec. 842.02(1) also codifies an action well known at common law. See Kubina v. Nichols, 241 Wis. 644, 648, 6 N.W.2d 657 (1943), cert. denied, Nichols v. Rubina, 318 U.S. 784, 63 S. Ct. 852, 87 L.Ed. 2d 1151 (1943) (partition of real property is an equitable action).

In Wisconsin partition is a remedy under both the statutes and common law. Partition applies generally to all disputes over property held by more than one party. This court has already held, in Jezo v. Jezo, 19 Wis. 2d 78, 81, 119 N.W.2d 471 (1964), that the principles of partition could be applied to determine the respective property interests of a husband and wife in jointly owned property where the divorce law governing property division did not apply. Because the action was not incident to divorce, separation, or annulment, the Jezo court rejected the parties’ claim for property division under the divorce law, but did hold that a circuit court should apply the principles of partition to settle the parties’ property dispute. The court stated that the "determination of the issues relating to the property of the parties to this action is to be made... on the basis of those legal and equitable principles which would govern the rights to property between strangers.” Id. Thus, Jezo appears to say that persons, regardless of their marital status, may sue for partition of property.

*536Apart from citing the partition statutes, the plaintiff relies heavily on Carlson v. Olson, supra 256 N.W.2d at 255, in which the Minnesota supreme court approved the application of common law partition principles to augment partition statutes on facts very similar to those in this case.22 Carlson is one of a number of cases similar to the fact situation in the case at bar in which the court used the partition remedy to protect the interests of both parties to a nonmarital cohabitation relationship in the property acquired during their relationship. See, e.g., Carroll v. Lee, 148 Ariz. 10, 14, 712 P.2d 923 (1986) (partition allowed where parties acquired property in joint title through joint common effort and for a common purpose and parties had implied partnership or joint enterprise agreement).

The defendant refutes the plaintiffs claim for partition on two grounds. First, the defendant cites generally to Slocum v. Hammond, 346 N.W.2d 481, 494-95 (Iowa 1984), a case involving nonmarital cohabitation in which the Iowa supreme court denied the plaintiffs partition claim. Slocum is inapposite. In Slocum the court denied partition simply because the woman had failed to establish through evidence the requisite "joint venture,” not because the partition *537action was an improper remedy in nonmarital cohabitation cases. Slocum was recently distinguished in Metten v. Benge, 366 N.W.2d 577, 579-80 (Iowa 1985), in which the Iowa supreme court upheld the trial court’s application of equitable partition principals to settle a dispute over property by unmarried cohabitants.

Second, as we have previously said, the defendant relying on Hewitt groups all of the plaintiffs claims together, including the partition claim, labels them "marriage-like claims,” and argues that the court should not grant relief relating to the parties’ accumulated property in cases of nonmarital cohabitation. We have already discussed the defendant’s position and concluded that we are not persuaded by it.

In this case, the plaintiff has alleged that she and the defendant were engaged in a joint venture or partnership, that they purchased real and personal property as husband and wife, and that they intended to share all the property acquired during their relationship. In our opinion, these allegations, together with other facts alleged in the plaintiffs complaint (e.g., the plaintiffs contributions to the acquisition of their property) and reasonable inferences therefrom, are sufficient under Wisconsin’s liberal notice pleading rule to state a claim for an accounting of the property acquired during the parties’ relationship and partition. We do not, of course, presume to judge the merits of the plaintiffs claim. Proof of her allegations must be made to the circuit court. We merely hold that the plaintiff has alleged sufficient facts in her complaint to state a claim for relief statutory or common law partition.

*538In summary, we hold that the plaintiffs complaint has stated a claim upon which relief may be granted. We conclude that her claim may not rest on sec. 767.255, Stats. 1985-86, or the doctrine of "marriage by estoppel,” but that it may rest on contract, unjust enrichment or partition. Accordingly, we reverse the judgment of the circuit court, and remand the cause to the circuit court for further proceedings consistent with this opinion.

By the Court. — The judgment of the circuit court is reversed and the cause remanded.

Parker C. J.

General rules of law established for tho protection and security of honest and fair-minded men, who may inconsiderately make promises without any equivalent, will sometimes screen men of a different character from engagements which they are bound in foro consciehtice to perform. This is a defect inherent in all human systems of legislation. The rule that a mere verbal promise, without any consideration, cannot be enforced by action, is universal in its application, and cannot be departed from to suit particular cases m which a refusal to perform such a promise may be disgraceful.

The promise declared on in this case appears to have been made without any legal consideration. The kindness and set-vices towards the sick son of the defendant were not bestowed at his request. The son was in no respect under the care of the defendant. He was twenty-five years old, and had long left his father’s family. On his return from a foreign country, he fell sick among strangers, and the plaintiff acted the part oi the good Samaritan, giving him shelter and comfort until he died. The defendant, his father, on being informed of this event, influenced by a transient feeling of gratitude, promises in writing to pay the plaintiff for the expenses he had incurred. But he has determined to break this promise, and is willing to have his case appear on record as a strong example of particular injustice sometimes necessarily resulting from the operation of general rules.

It is said a moral obligation is a sufficient consideration to support an express promise ; and some authorities lay down the rule thus broadly ; but upon examination of the cases we are satisfied that the universality of the rule cannot be supported, and that there must have been some preexisting obligation, which has become inoperative by positive law, to form a basis for an effective promise. The cases of debts barred by the statute of limitations, of debts incurred by infants, of debts of bankrupts, are generally put for illustration of the rule. Ex press promises founded on such preexisting equitable obligations may be enforced ; there is a good consideration for them ; they merely remove an impediment created by law to the recovery of debts honestly due, but which public policy protects the debtors from being compelled to pay. In all these cases there was originally a quid pro quo ; and according to the principles of natural justice the party receiving ought to pay ; but the legislature has said he shall not be coerced ; then comes the promise to pay the debt that is barred, the promise of the man to pay the debt of the infant, of the discharged bankrupt to restore to his creditor what by the law he had lost. In all these cases there is a moral obligation founded upon an antecedent valuable consideration. These promises therefore have a sound legal basis. They are not promises to pay someth. ng for nothing; not naked pacts ; but the voluntary revival or creation of obligation which before existed in natural law, but which had been dispensed with, not for the benefit of the party obliged solely, but principally for the public convenience. If moral obligation, in its fullest sense, is a good substratum for an express promise, it is not easy to perceive why it is not equally good to support an implied promise. What a man ought to do, generally he ought to be made to do, whether he promise or refuse. But the law of society has left most of such obligations to the interior forum, as the tribunal of conscience has been aptly called. Is there not a moral obligation upon every son who has become affluent by means of the education and advantages bestowed upon him by his father, to relieve that father from pecuniary embarrassment, to promote his comfort and happiness, and even to share with him his riches, if thereby he will be made happy ? And yet such a son may, with impunity, leave such a father in any degree of penury above that which will expose the community in which ho dwells, to the danger of being obliged to preserve him from absolute want. Is not a wealthy father under strong moral obligation to advance the" interest of an obedient, well disposed son, to furnish him with the means of acquiring and maintaining a becoming rank in life, to rescue him from the horrors of debt incurred by misfortune ? Yet the law will uphold him in any degree of parsimony, short of that which would reduce his son to the necessity of seeking public charity.

Without doubt there are great interests of society which justify withholding the coercive arm of the law from these duties of imperfect obligation, as they are called; imperfect, not uecause they are less binding upon the conscience than those which are called perfect, but because the wisdom of the social law does not impose sanctions upon them.

A deliberate promise, in writing, made freely and without any mistake, one which may lead the party to whom it is made into contracts and expenses, cannot be broken without a violation of moral duty. But if there was nothing paid or promised for it, the law, perhaps wisely, leaves the execution of it to the conscience of him who makes it. It is only when the party making the promise gains something, or he to whom it is made loses something, that the law gives the promise validity. And in the case of the promise of the adult to pay the debt of the infant, of the debtor discharged by the statute of hm rations or bankruptcy, the principle is preserved by looking back to the origin of the transaction, where an equivalent is to be founn An exact equivalent is not required by the law ; for there oeing a consideration, the parties are left to estimate its value : though here the courts of equity will step in to relieve from gross inadequacy between the consideration and the promise.

These principles are deduced from the general current of decided cases upon the subject, as well as from the known maxims of the common law. The general position, that moral obligation is a sufficient consideration for an express promise, is to be limited in its application, to cases where at some time or other a good or valuable consideration has. existed.1

A legal obligation is always a sufficient consideration to support either an express or an implied promise ; such as an infant’s debt for necessaries, or a father’s promise to pay for the support and education of his minor children. But when the child shall have attained to manhood, and shall have become his own agent in the world’s business, the debts he in curs, whatever may be their nature, create no obligation upon the father ; and it seems to follow, that his promise founded upon such a debt has no legally binding force.

The cases of instruments under seal and certain mercantile contracts, in which considerations need not be proved, do not contradict the principles above suggested. The first import a consideration in themselves, and the second belong to a branch of the mercantile law, which has found it necessary to disregard the point of consideration in respect to instruments negotiable in their nature and essential to the interests of com merce.

Instead of citing a multiplicity of cases to support the positions I have .aben, I will only refer to a very able review of all the cases in' the note in 3 Bos. & Pul. 249. The opinions of the judges had been variant for a long course of years upon this subject, but there seems to be no case in which it was nakedly decided, that a promise to pay the debt of a son of full age, not living with his father, though the debt were incurred by sickness which ended in the death of the son, without a previous request by the father proved or presumed, could be enforced by action.

It has been attempted to show a legal obligation on the part of the defendant by virtue of our statute, which compels lineal kindred in the ascending or descending line to support such of their poor relations as are likely to become chargeable to the town where they have their settlement. But it is a sufficient answer to this position, that such legal obligation does not exist except in the very cases provided for in the statute, and never until the party charged has been adjudged to be of sufficient ability thereto. We do not know from the report any of the facts which are necessary to create such an obligation. Whether the deceased had a legal settlement in this commonwealth at the time of his death, whether he was likely to become chargeable had he lived, whether the defendant was of sufficient ability, are essential facts to be adjudicated by the court to which is given jurisdiction on this subject. The legal liability does not arise until these facts have all been ascertained by judgment, after hearing the party intended to be charged.1

For the foregoing reasons we are all of opinion that the non-suit directed by the Court of Common Pleas was right, and that judgment be entered thereon for costs for the defendant,