dissenting.
The court has reached beyond the narrow issue on which application for writ of error was granted — whether the court of appeals erred in reversing the trial court’s judgment in favor of Heldenfels on its negligence claim.1 Today’s opinion extinguishes other equitable doctrines an unsuspecting2 subcontractor might reasonably rely on when attempting to recover payment for materials and services rendered. At 40 n. 2. Because I cannot accept the inequity the court imposes today, I respectfully dissent.
QUANTUM MERUIT
The court’s first blow to Heldenfels’ equitable right of recovery is delivered against the doctrine of quantum meruit. Although I do not quarrel with its general statement of the law under this theory, the court fails to properly conduct a no evidence review.
The majority opinion reviews the testimony of two of Heldenfels’ witnesses, Kurt Schriefer and H.C. Heldenfels, and concludes their testimony provides no evidence to support the trial court’s finding that Heldenfels anticipated payment from the *43City before delivering the T-beams. At 41. I disagree. The record reveals some evidence that Heldenfels relied on the City for payment. Consistent with this expectation there is evidence the City, when it temporarily assumed the duties of the general contractor, would have relied on Heldenfels for any needed repair or modification to the T-beams. See Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965) (regarding no evidence review); see also City of Ingleside v. Stewart, 554 S.W.2d 939, 945 (Tex.Civ.App.-Corpus Christi 1977, writ ref d n.r.e.) (payment agreement may be implied and recovery under quantum meruit available where subcontractor deals with municipality in reliance on city’s apparent control of project).
UNJUST ENRICHMENT
The second blow the court inflicts is the rejection of Heldenfels’ right of recovery under the doctrine of unjust enrichment. The court concludes that restitution based on the theory of “[ujnjust enrichment is not a proper remedy merely because it ‘might appear expedient or generally fair that some recompense be afforded for an unfortunate loss’ ... or because the benefits to the person [party] sought to be charged amount to a windfall.” At 42. Here, the majority’s analysis reveals a less than candid approach.
In this case, being “expedient or generally fair” has nothing to do with Heldenfels’ right to recover lest the City be unjustly enriched. It has, however, everything to do with “affordpng] recompense” to Hel-denfels to avoid an inequitable “windfall” in favor of the City. Unjust enrichment demands restitution when a party receiving property or benefits would be unjustly enriched if it were permitted to retain the property or benefits at the expense of another. See Fun Times Ctrs., Inc. v. Continental Nat’l Bank of Fort Worth, 517 S.W.2d 877, 884 (Tex.Civ.App.-Tyler 1974, writ ref’d n.r.e.). Allowing the City to retain the T-beams free of charge, when funds specifically provided for their cost are available, offends all traditional notions of equity that restitution based on the theory of unjust enrichment seeks to prevent. See Oxford Fin. Cos. v. Velez, 807 S.W.2d 460, 465 (Tex.App.-Austin 1991, writ denied).
NEGLIGENCE
Finally, Heldenfels is defeated under the very statutory provision the court concedes was designed to protect subcontractors. At 42. To give meaning to the protective purpose of former Article 5160 requires the imposition of a duty and liability for damages resulting from the breach of that duty. Otherwise, the statute’s protective devices are illusory. See Jessen Assocs., Inc. v. Bullock, 531 S.W.2d 593, 599 (Tex. 1975) (purpose of statute should be given full effect); Greenville Ind. Sch. Dist. v. B & J Excavating, Inc., 694 S.W.2d 410, 415 (Tex.App.-Dallas 1985, writ ref’d n.r.e.) (Stephens, J., dissenting). I find it “entirely reasonable for a subcontractor to assume that the governmental agency [the City], executing a construction contract covered by Article 5160 will follow the law_” City of Ingleside, 554 S.W.2d at 945. If a governmental agency fails to properly secure a payment and performance bond, “then it should also not be heard to claim that a subcontractor’s only remedy for nonpayment is against the general contractor_” Id. (emphasis added).
Beyond rendering the former statute a nullity, the court once more evades conventional notions of equity and just accountability by failing to recognize the legislature’s message embodied in the new statute. There can be no doubt that under the current statutory scheme, liability can arise, and a municipality can be held accountable, if it “fails to obtain from the prime contractor a payment bond in compliance with th[e] Act.” See Tex.Rev.Civ. Stat.Ann. art. 5160 (Vernon Supp.1992). The court should recognize this unequivocal expression of legislative intent.
MAUZY and DOGGETT, JJ., concur.. See 34 Tex.Sup.Ct.J. 513, 515-16 (April 13, 1991).
. Other subcontractors who have dealt with the City on this project may not, however, be so "unsuspecting.” They too, know the cost of doing business with the City. See City of Corpus Christi v. Acme Mechanical Contractors, Inc., 736 S.W.2d 894 (Tex.App.-Corpus Christi 1987, writ denied); City of Corpus Christi v. S.S. Smith & Sons Masonry, Inc., 736 S.W.2d 247 (Tex.App.-Corpus Christi 1987, writ denied).