(concurring in part and dissenting in part) :
I dissent from the majority’s conclusion that the plaintiff has shown a claim for relief for unjust enrichment against the defendant Andora Villa. However, I do concur that the matter be remanded to the *274trial court in order to permit the plaintiff to attempt to amend his complaint to allege a claim for relief on the theory of tortious interference with contract. The reasons are as follows:
Regarding the issue of unjust enrichment, while the majority opinion does not point it out, the defendant Andora Villa was also the victim of the failure of Butler Brothers to pay all of the bills relating to its construction projects, and when all of the construction was complete, the defendant Andora Villa not only paid its full contract price to Butler Brothers, but in addition had to pay approximately $23,000 more in order to cover the costs of materials and labor furnished in order to prevent liens from being filed on its property. Under these circumstances, how then can it be stated that the defendant Andora Villa was unjustly enriched?
The test of unjust enrichment is not the extent of any loss by plaintiff, but the amount by which the defendant has been unjustly enriched. Continental Forest Products, Inc. v. Chandler Supply Co., 95 Idaho 739, 518 P.2d 1201 (1974). Under the facts of this case, since the defendant actually sustained a loss rather than an enrichment as a result of its dealings with Butler Brothers, no cause of action for unjust enrichment would lie against it by plaintiff Warm Springs Properties, Inc. To argue that Andora Villa would have lost more but for its inequitable conduct, and therefore was unjustly enriched, has never been the basis of successful claims for unjust enrichment that I have been able to discover, and the majority cites no authority for this proposition. The trial court was correct in granting summary judgment for the defendant on that issue.
However, there are certain allegations in plaintiff’s complaint, and alleged facts set out in the affidavits of the plaintiff which suggest that plaintiff might be able to establish a cause of action against Andora Villa for tortious interference with contract. See Barlow v. International Harvester Co., 95 Idaho 881, 522 P.2d 1102 (1974). Although contested, there was some evidence to the effect that the officers of Andora Villa prevailed upon Butler Brothers to seek advances from Warm Springs Properties, Inc., representing that the funds would be used to pay Warm Springs bills, and then using the money to pay the bills of Andora Villa. On remand, the plaintiff should be given an opportunity to amend his complaint to attempt to allege such a claim for relief, and then have that theory tested in a'new motion for summary judgment, or in a trial if the facts are materially disputed.