OPINION
The basic issue raised by this appeal is whether the plaintiff below, Earthmovers of Fairbanks, Inc., was entitled to a 22% profit and overhead markup from Pacific Insurance Company, on parts which Earthmovers, Inc., had purchased to repair a damaged crane. The appeal was brought by Earthmovers, Inc., after entry of a judgment in favor of Pacific.
The crane was insured against damage by Pacific, under an insurance policy issued to H S Earthmovers, a joint venture.1 The joint venture and Earthmovers, Inc., are separate entities. After the crane was damaged by a truck belonging to Badger Construction Co., it was repaired by Earthmovers, Inc. Pacific paid $90,794.49 to the joint venture for the repair of the crane, but refused to pay the $5,000 deductible under its policy and the 22% profit and overhead markup demanded by Earthmovers, Inc.
Earthmovers, Inc., thereupon filed suit in the superior court, contending that it was acting separately from the joint venture in repairing the crane, and that it was entitled to recover under a repair contract, express or implied-in-fact, with Pacific. The superior court found that there was no such contract and entered judgment in favor of Pacific.
After the superior court announced its decision, Earthmovers, Inc., filed a motion requesting that the court reconsider its judgment or, in the alternative, that the court permit it to amend its complaint to substitute the joint venture, H S Earthmovers, as party plaintiff. The court granted the motion for reconsideration, re-affirmed its original decision, and denied the motion to amend. This appeal followed.
Earthmovers, Inc., first contends that the court erred in finding that there was no contract between the parties. This contention, we believe, is without merit. The existence or non-existence of a contract is a question of fact, and a trial court's finding on that issue will not be set aside by this court unless clearly erroneous. Jackson v. White, 556 P.2d 530, 532 (Alaska 1976); B.B. S. Construction Co. v. Stone,535 P.2d 271, 273-74 (Alaska 1975). Rule 52(a), Alaska R.Civ.P.2 The record in this case fails to convince us that the trial court's finding, that there was no contract, was clearly erroneous, or that in reaching its decision there was an erroneous application of law.
Next, Earthmovers, Inc., contends that "the doctrines of equity could have and should have been utilized by the trial court to resolve [the case] rather than strict adherence to the common law principles of contract." Although not clearly stated in its brief, its argument is apparently that Earthmovers, Inc., was entitled to recover on a theory of unjust enrichment or quasi-contract.
*Page 783In B.B. S. Construction Co. v. Stone, we stated:
Contractual and quasi-contractual relief are mutually exclusive remedies. A quasi-contractual obligation is one that is created by the law for reasons of justice, without any expression of assent by the parties. A contractual obligation is created by expressions of assent.
535 P.2d at 275 n. 8 (citations omitted). In Martens v.Metzgar, 524 P.2d 666 (Alaska 1974), we cited with approval the following description of the essential elements of quasi-contract:
Id. at 674, quoting Home Savings Bank v. General FinanceCorp., 10 Wis.2d 417, 103 N.W.2d 117, 121 (1960).[B]enefit conferred upon the defendant by the plaintiff, appreciation by the defendant of the benefit and acceptance and retention by the defendant of such benefit under circumstances such that it would be inequitable to retain the benefit without payment of the value thereof.
In the case at bar, Pacific was unjustly enriched only if it was obligated under its policy to repair the crane.3 That question, however, was not litigated; Pacific's liability under the policy was never an issue in the trial of the case.4 Well prior to trial, in a memorandum filed in support of its motion for summary judgment, Earthmovers, Inc.'s, attorney stated:
[T]his is not a case involving an insured and an insurance company. . . . The provisions of the insurance policy have no effect whatever on the dispute between Earthmovers and Pacific Insurance in his litigation, except where the insurance company is relieved from obligation for paying portions of the repair.
That continued to be his stated position until after the trial ended. The first indication that his position might be otherwise was when he filed his post-trial motion to amend the complaint. Under these circumstances, we think it would have been improper to allow Earthmovers, Inc., to recover on a theory of quasi-contract, since Pacific's obligation to repair the crane, under the terms of its policy, was never established.
Earthmovers, Inc., did, of course, by its motion to amend, attempt to convert the claim to one under the policy, by substituting the joint venture as party plaintiff. That motion, however, was denied. Our dissenting colleague would have us hold that such action amounted to an abuse of the court's discretion.
The effect of the amendment would have been to change the entire nature of the case. The suit that had begun, and was tried, as one by Earthmovers, Inc., for payment under its alleged repair contract, would have become an action by H S Earthmovers, a separate legal entity, to collect under the terms of the insurance policy issued to it by Pacific. Given the significant differences involved in the two causes of action, and counsel's repeated assertions that the insurance policy was not involved, we are unable to say that in refusing to allow the amendment the court abused its discretion. See Merrill v.Faltin, 430 P.2d 913, 915 (Alaska 1967).
Finally, Earthmovers, Inc., contends that it was entitled to recover the amounts claimed under this court's decision inCurt's Trucking Co. v. City of Anchorage, 578 P.2d 975 (Alaska 1978), citing that case "along with the evidence and finding by the trial court on the subject of the profit and overhead markup, [as] conclusive of that issue in this case." In Curt's we held that "a party which repairs property tortiously damaged by another should be permitted to recover indirect expenses incurred in making such repairs if its calculation of overhead is shown to be a fair and reasonable measure of actual costs." Id. at 979.
The superior court found that a 22% profit and overhead markup, except on certain items, was reasonable. The court *Page 784 further found, however, that the repairs had been performed by the joint venture, an entity separate from Earthmovers, Inc., and concluded that Earthmovers, Inc., was, therefore, not entitled to recover.5 Again, we are unable to say that this finding was clearly erroneous or that in reaching its decision the court erroneously applied the law.
Having concluded that there are no other grounds justifying a reversal, the judgment of the superior court is AFFIRMED.
4. Plaintiff's employees were acting in dealings with the defendant as agents of the joint venture — the insured. All repairs were made by the joint venture.
5. Defendant believed it was dealing at all times pertinent hereto with [the joint venture], not the plaintiff.
. . . . .
7. Plaintiff is estopped from claiming its agents were acting separately from the joint venture, because the dealings were within the scope of the joint venture, were commenced in the name of the joint venture, and plaintiff gave no notice to the defendant of any intention to act outside the joint venture in these dealings.