### 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 A

merica, Inc., printed a series of cookbooks under printing services contracts wi th publisher Russ Moore & Associates ("RMA") for the benefit of RMA's cust omer, 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, an d quan tummeruit claims against LOL. The district court granted summar y 1 judgment in favor of LOL, and Ringier appeals. Having reviewed the grant of summary judgment de novo, we affirm.

### -2- I.
Ringier claims that a December 5, 1991, agreement between RMA a nd LOL createda joint venture, permitting Ringier to sue LOL, a principal, for unpai d services performed for the joint venture. In the December 199 1 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 reci pes, and retained approval rights ov er the final product. RMA agreed to provide the essentia l publishing services - - writing, editing, layout, illustrations, printing, binding, packaging, shipping, "and all other services necessary to make th e Clas sic Cookbook project a 'turn key' operation for LOL." For thes e serv ices, LOL agreed to pay RMA a specified price per unit, one-hal f payable during the production process and the remainder "within thirty (30 ) days of LOL's review and approval" of each compl eted cookbook. RMA agreed to reduce the agreed per unit prices by twenty percent in return for twent y per cent of LOL's cookbook profits. Paragraph eighteen of the agreemen t defined the parties' relationship:

This Agreement is not intended and shall not be construed t o constit ute either party as the employee, joint venture o r franch ising partner, agent or legal representative of th e ot her. Neither party shall have any authority, express , imp liedor apparent, to assume or create any obligations o n behalf of or in the name of the other party.
Printing was the biggest expense in publishing the cookbooks, a nd RMA chose Ringier for thi s task. In March 1992, and again in September 1993, RMAand Ringier entered into written agreements providing that RMA would pay Ringier for print ing services which satisfied RMA's "requirements for produc tion" of the Classic Cookbooks. LOL was not a party to eithe r agreement. Ringier r eviewed 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 Classi c Cookbo oks. In performing that function, RMA collected payments fro m distri butor Kable News Company for cookbooks sold through grocery stor e magazine r acks. After the initial cookbooks were distributed, RMA began 2 using revenues from c ookbook sales -- which it had agreed to remit to LOL

-- to pay Ringier's invoices for cookbooks still in production, despite th e fact that LOL's payments to RMA under the December 1991 agreement wer e timed to permit RMA to stay current with vendors such as Ringier.
The Classic Cookbooks were not a financial success, which exace rbated RMA's cas h flow problems. By the summer of 1993, RMA was seriousl y delinquent in remitting sales revenues. LOL demanded a change -- immediat e remittance of advances on sales -- rejecting RMA's request for a "float"
so that R MA could promptly pay Ringier invoices. After this change wa s implemented, RMA failed to pay Ringier for the O ctober 1993 cookbook. LOL then paid Ringier directly for at least one more cookbook before retaining another commercial printer to continue the project. Ringier commenced thi s 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 th e December 1991 agreement expressly disclaimed a j oint venture relationship, and becau se the essential element of joint control was missing. I t rejected Ringier's claims for unjust enrichment and quantum meruit because suchrelief is not available when the rights of the parties are governed by contract.

### -4- 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 beca use the issue of joint control is also a fact question for th e jury. A joint venture is a species of partnership. See generall y R EUSCH LEIN & G REGORY , H ANDBOOK ON THE L AW OF A GENCY AND P ARTNERSHIP § 266 (1979)
. Under Minnesota law, "the rules and principles a pplicable to a partnership relatio n, with few if any material exceptions, govern and control th e 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 betwee n themselves [are] partners as to third persons." Moore v. Thorpe , 158 N.W. 235, 238 ( Minn. 1916). Thus, Ringier properly focuses on whether th e Dece mber 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 aut hority 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 f or the partnership in the particular matter, and the person wi th whom that partner is dealing has knowledge of the fact tha t that partner has no s uch authority"); Moore , 158 N.W. at 238; First Nat'l Bank v. Stadden , 115 N.W. 198, 199 (Minn. 1908).

In this c ase, Ringier reviewed the RMA-LOL contract before agreeing to print the Classic Cookbooks for RMA. The RMA-LOL contract expressl y stated that the parties were not joint venturers and that RMA had n o "autho rity, express, implied or apparent, to assume or create an y obl igations on behalf of or in the name of [LOL]." Thus, Ringie r contracted with RMA individually, knowing

### -5-

that RMA had no autho rity to bind LOL. In these circumstances, Ringier's joint venture claim f ails as a matter of law. "Where one, with knowledge of a partnership elects to contract with an individual member of th e 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.2 d 882, 891 (8th Cir. 1959), followed in Tschimperle v. Independent Stat e Bank , 1992 WL 138621 (Minn. App. 1992) (unpublished).

We also a gree with the district court that RMA and LOL wer e inde pendent contractors, not principals in a joint venture. A join t venture requires proof of contribution, joint co ntrol, sharing of profits, anda joint venture c ontract. See Rehnberg , 52 N.W.2d at 457. Here, RMA controlled its own activities, but LOL controlle d the project, determining howmany 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 no t profit s haring "in the manner consistent with a status of a join t adventure." Id. at 457. Finally, while we agree that the contractua l disclaimer is not dis positive, it is strong evidence that the parties did not intend that their cooperative undertaking create a partnership or join t venture.

III.
Ringier further argues that it is entitled to equitable relie f because LOL reaped th e benefit of printing services for which Ringier was not paid. The distri ct court rejected this claim because Ringier's claim for payment was governed by an express contract. Ringier strives mightily to distin guish the cases relied upon by the district court and LOL, bu t Ringier cites no authority -- from Minnesota or elsewhere -- allowin g unjust enrichment or quantum meruit recovery in a similar situation.

### -6- We conclude there are fatal flaws in Ringier's unjust enrichmen t theory. F irst, LOL was not unjustly enriched -- it received printin g services as part of the benefit of its bargain w ith RMA, a bargain LOL did not breach. Indeed, LOL was not enriched at all -- its relationship with RMAended with RMA owing LOL some $355,000. At most, LOL adversel y affectedRingier by offsetting LOL's obligation to pay RMA for curren t costs of production against amounts RMA had failed to remit for sales of completed cookbooks. But that offset was not unjust as between RMA an d 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 court s do not apply unjust enrichment to protect a part y from the consequences of its bad bargain, even when a third party has received some benefit from th e aggrieved party's performance. See Cox v. First Nat'l Bank , 415 N.W.2 d 385, 389 (Minn. App. 1987) ("unjust enrichment was not created to protect parti es from their own bad bargains"); First Nat'l Bank v. Ramier , 31 1 N.W.2d 502 , 504 (Minn. 1981). Moreover, a claim of unjust enrichmen t requ ires proof that plaintiff conferred benefits unknowingly o r unwillingly. See Hol mes v. Torguson , 41 F.3d 1251, 1256 (8th Cir. 1994). Here, Ringier knew LO L 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.