dissenting.
I agree with the majority opinion that A & A cannot recover from I-S on the principle of abuse of process, but I do not agree that recovery can be based upon unjust enrichment.
Anyone who enters into a contract for erection of a public building must provide a bond guaranteeing performance of the contract and “shall pay all bills or claims on account of labor and materials . . . used in and about the performance of said contract . . , Section 48-01-01, NDCC. See also Section 43-07-11, NDCC.
If A & A chose to sublet any part of its contract to Jake’s without requiring the posting of a subcontractor’s performance bond, then the bond which it furnished to Underwood guaranteed the payment to I-S for material furnished. I-S was not unjustly enriched and A & A was not unjustly required to pay for material which its contract required it to pay. I would either reverse the judgment entirely or remand so that the proper parties and proper issues could be brought into the case.