The HONORABLE JAMES M. MOODY, United States District Judge *

for the Eastern District of Arkansas, sitting by designation.

 The HONORABLE DAVID S. DOTY, United States District Judge 1

for the District of Minnesota.

___________

No. 96-1787

___________

Ringier America, Inc., *

*

Plaintiff - Appellant, *

* Appeal from the United States

v. * District Court for the 

* District of Minnesota

Land O'Lakes, Inc., *

*

Defendant - Appellee. *

___________

 Submitted: November 21, 1996

 Filed: February 7, 1997

___________

Before BEAM and LOKEN, Circuit Judges, and MOODY, District Judge. *

___________

LOKEN, Circuit Judge.

Ringier America, Inc., printed a series of cookbooks under printing

services contracts with publisher Russ Moore & Associates ("RMA") for the

benefit of RMA's customer, Land O'Lakes, Inc. ("LOL"). RMA failed to pay

Ringier some $155,000 invoiced under those contracts. Ringier commenced

this diversity action, asserting joint venture, unjust enrichment, and

quantum meruit claims against LOL. The district court granted summary

1

judgment in favor of LOL, and Ringier appeals. Having reviewed the grant

of summary judgment de novo, we affirm. 
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I.

Ringier claims that a December 5, 1991, agreement between RMA and LOL

created a joint venture, permitting Ringier to sue LOL, a principal, for

unpaid services performed for the joint venture. In the December 1991

agreement, RMA and LOL undertook "to develop, publish, promote and market"

a series of magazine-style cookbooks referred to as "Classic Cookbooks,"

using LOL trademarks and tradenames. Under the agreement, LOL determined

when to produce each cookbook, provided the recipes, and retained approval

rights over the final product. RMA agreed to provide the essential

publishing services -- writing, editing, layout, illustrations, printing,

binding, packaging, shipping, "and all other services necessary to make the

Classic Cookbook project a 'turn key' operation for LOL." For these

services, LOL agreed to pay RMA a specified price per unit, one-half

payable during the production process and the remainder "within thirty (30)

days of LOL's review and approval" of each completed cookbook. RMA agreed

to reduce the agreed per unit prices by twenty percent in return for twenty

percent of LOL's cookbook profits. Paragraph eighteen of the agreement

defined the parties' relationship: 

This Agreement is not intended and shall not be construed to

constitute either party as the employee, joint venture or

franchising partner, agent or legal representative of the

other. Neither party shall have any authority, express,

implied or apparent, to assume or create any obligations on

behalf of or in the name of the other party. 

Printing was the biggest expense in publishing the cookbooks, and RMA

chose Ringier for this task. In March 1992, and again in September 1993,

RMA and Ringier entered into written agreements providing that RMA would

pay Ringier for printing services which satisfied RMA's "requirements for

production" of the Classic Cookbooks. LOL was not a party to either

agreement. Ringier reviewed the RMA-LOL contract before contracting with

RMA. 
 Apparently, the December 1991 agreement between RMA and LOL 2

did not define their total relationship regarding the Classic

Cookbooks project. For example, the record on appeal refers to

but does not include a March 1992 agreement between RMA, LOL, and

Kable News relating to distribution. Because Ringier as

plaintiff has the burden to prove the alleged joint venture, we

assume the missing contract does not support its joint venture

theory.

-3-

Under RMA's arrangement with LOL, RMA also marketed the Classic

Cookbooks. In performing that function, RMA collected payments from

distributor Kable News Company for cookbooks sold through grocery store

magazine racks. After the initial cookbooks were distributed, RMA began 2

using revenues from cookbook sales -- which it had agreed to remit to LOL

-- to pay Ringier's invoices for cookbooks still in production, despite the

fact that LOL's payments to RMA under the December 1991 agreement were

timed to permit RMA to stay current with vendors such as Ringier. 

The Classic Cookbooks were not a financial success, which exacerbated

RMA's cash flow problems. By the summer of 1993, RMA was seriously

delinquent in remitting sales revenues. LOL demanded a change -- immediate

remittance of advances on sales -- rejecting RMA's request for a "float"

so that RMA could promptly pay Ringier invoices. After this change was

implemented, RMA failed to pay Ringier for the October 1993 cookbook. LOL

then paid Ringier directly for at least one more cookbook before retaining

another commercial printer to continue the project. Ringier commenced this

lawsuit when neither RMA nor LOL would pay its additional $155,000 claim

for unpaid printing invoices to RMA.

Applying Minnesota law, the district court granted summary judgment

in favor of LOL. It rejected Ringier's joint venture claim because the

December 1991 agreement expressly disclaimed a joint venture relationship,

and because the essential element of joint control was missing. It

rejected Ringier's claims for unjust enrichment and quantum meruit because

such relief is not available when the rights of the parties are governed

by contract.
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II.

On appeal, Ringier first argues that summary judgment is improper on

its joint venture claim because the substance of the RMA-LOL relationship,

not the contract disclaimer, controls whether a joint venture was created,

and because the issue of joint control is also a fact question for the

jury. A joint venture is a species of partnership. See generally

REUSCHLEIN & GREGORY, HANDBOOK ON THE LAW OF AGENCY AND PARTNERSHIP § 266 (1979).

Under Minnesota law, "the rules and principles applicable to a partnership

relation, with few if any material exceptions, govern and control the

rights, duties, and obligations of the parties [to a joint venture]."

Rehnberg v. Minnesota Homes, Inc., 52 N.W.2d 454, 457 (Minn. 1952). 

The general rule is that parties who are "partners as between

themselves [are] partners as to third persons." Moore v. Thorpe, 158 N.W.

235, 238 (Minn. 1916). Thus, Ringier properly focuses on whether the

December 1991 agreement created a joint venture between RMA and LOL.

However, that is not the end of the inquiry. To bind the partnership, a

partner must act within the scope of his actual authority, or within the

scope of apparent authority with a party unaware that actual authority is

more limited. See Minn. Stat. § 323.08 (partner carrying on partnership

business binds the partnership "unless the partner so acting has in fact

no authority to act for the partnership in the particular matter, and the

person with whom that partner is dealing has knowledge of the fact that

that partner has no such authority"); Moore, 158 N.W. at 238; First Nat'l

Bank v. Stadden, 115 N.W. 198, 199 (Minn. 1908). 

In this case, Ringier reviewed the RMA-LOL contract before agreeing

to print the Classic Cookbooks for RMA. The RMA-LOL contract expressly

stated that the parties were not joint venturers and that RMA had no

"authority, express, implied or apparent, to assume or create any

obligations on behalf of or in the name of [LOL]." Thus, Ringier

contracted with RMA individually, knowing
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that RMA had no authority to bind LOL. In these circumstances, Ringier's

joint venture claim fails as a matter of law. "Where one, with knowledge

of a partnership elects to contract with an individual member of the

partnership upon that member's exclusive credit, even though the contract

is for the benefit of the partnership, the member contracted with and he

alone is liable under the contract." Nelson v. Seaboard Sur. Co., 269 F.2d

882, 891 (8th Cir. 1959), followed in Tschimperle v. Independent State

Bank, 1992 WL 138621 (Minn. App. 1992) (unpublished). 

We also agree with the district court that RMA and LOL were

independent contractors, not principals in a joint venture. A joint

venture requires proof of contribution, joint control, sharing of profits,

and a joint venture contract. See Rehnberg, 52 N.W.2d at 457. Here, RMA

controlled its own activities, but LOL controlled the project, determining

how many cookbooks to publish, when to publish, what recipes to include,

and so forth. In addition, while RMA received twenty percent of LOL's

profits, that was in lieu of part of its publishing fee, which is not

profit sharing "in the manner consistent with a status of a joint

adventure." Id. at 457. Finally, while we agree that the contractual

disclaimer is not dispositive, it is strong evidence that the parties did

not intend that their cooperative undertaking create a partnership or joint

venture.

 

III.

Ringier further argues that it is entitled to equitable relief

because LOL reaped the benefit of printing services for which Ringier was

not paid. The district court rejected this claim because Ringier's claim

for payment was governed by an express contract. Ringier strives mightily

to distinguish the cases relied upon by the district court and LOL, but

Ringier cites no authority -- from Minnesota or elsewhere -- allowing

unjust enrichment or quantum meruit recovery in a similar situation. 
-6-

We conclude there are fatal flaws in Ringier's unjust enrichment

theory. First, LOL was not unjustly enriched -- it received printing

services as part of the benefit of its bargain with RMA, a bargain LOL did

not breach. Indeed, LOL was not enriched at all -- its relationship with

RMA ended with RMA owing LOL some $355,000. At most, LOL adversely

affected Ringier by offsetting LOL's obligation to pay RMA for current

costs of production against amounts RMA had failed to remit for sales of

completed cookbooks. But that offset was not unjust as between RMA and

LOL, and Ringier as an unsecured RMA creditor did not perfect a superior

right to the offset funds. 

Second, Ringier made the decision to deal exclusively with RMA,

knowing the contractual relationship between RMA and LOL. Minnesota courts

do not apply unjust enrichment to protect a party from the consequences of

its bad bargain, even when a third party has received some benefit from the

aggrieved party's performance. See Cox v. First Nat'l Bank, 415 N.W.2d

385, 389 (Minn. App. 1987) ("unjust enrichment was not created to protect

parties from their own bad bargains"); First Nat'l Bank v. Ramier, 311

N.W.2d 502, 504 (Minn. 1981). Moreover, a claim of unjust enrichment

requires proof that plaintiff conferred benefits unknowingly or

unwillingly. See Holmes v. Torguson, 41 F.3d 1251, 1256 (8th Cir. 1994).

Here, Ringier knew LOL would purchase the cookbooks from RMA, yet Ringier

dealt exclusively with RMA.

The judgment of the district court is affirmed.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.