July 27, 1993
                UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT
                                         

No. 92-2281

                COMMERCIAL ASSOCIATES, ET AL.,

                    Plaintiffs, Appellees,

                              v.

                    TILCON GAMMINO, INC.,

                    Defendant, Appellant.

                                         

                         ERRATA SHEET

The opinion of the  Court issued on July 22, 1993, is corrected as
follows:

On page 16, paragraph 3, line 2:  substitute "or" for "and."

                UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT
                                         

No. 92-2281

                COMMERCIAL ASSOCIATES, ET AL.,

                    Plaintiffs, Appellees,

                              v.

                    TILCON GAMMINO, INC.,

                    Defendant, Appellant.

                                         

         APPEAL FROM THE UNITED STATES DISTRICT COURT

               FOR THE DISTRICT OF RHODE ISLAND

         [Hon. Ernest C. Torres, U.S. District Judge]
                                                    

                                         

                            Before

                    Boudin, Circuit Judge,
                                         
               Campbell, Senior Circuit Judge,
                                             
                  and Stahl, Circuit Judge.
                                          

                                         

John R.  Fornaciari with whom Louis  V. Jackvony,  Jr., Jackvony &amp;
                                                                  
Jackvony,  Robert M.  Disch  and  Ross &amp;  Hardies  were  on brief  for
                                             
appellant.
William R. Landry  with whom Michael DiBiase, Karen A.  Pelczarski
                                                                  
and Blish &amp; Cavanagh were on brief for appellee, Lechmere, Inc.
                

                                         

                        July 22, 1993
                                         

     BOUDIN,  Circuit  Judge.    This action  arises  out  of
                            

efforts  to develop  a shopping  complex  known as  Bald Hill

Plaza  in Warwick, Rhode Island.  The plan was the brainchild

of  real  estate  developer  Anthony DelVicario,  who  was  a

general partner in a Massachusetts limited partnership called

Commercial Associates  ("Commercial").  Tilcon  Gammino, Inc.

("Tilcon"), a construction company, learned about the project

and expressed interest to  DelVicario in obtaining a contract

to  do  certain  construction  work in  connection  with  the

project, primarily  site clearing and  grading.   DelVicario,

with   Tilcon's   assistance,   approached   Lechmere,   Inc.

("Lechmere"), a Minnesota corporation  that operates a  chain

of retail stores, and persuaded Lechmere to join the  project

as one of the shopping center's "anchor stores."

     Lechmere purchased  the real  estate on which  its store

was  to be located, and  Commercial acquired the remainder of

the  property  needed  for  the development.    Lechmere  and

Commercial  entered into a written agreement--called the CORE

agreement-- which provided inter  alia that Commercial  would
                                      

be   responsible  for   the   site-clearing   work  and   the

construction  of   the  "footprint"  underlying   the  entire

shopping complex, including  the "pad" upon which  Lechmere's

store would be  built.  In consideration,  Lechmere agreed to

pay Commercial $1.3 million.  Commercial then retained Tilcon

to  serve as  the  general contractor  for the  site-clearing

                             -2-

work.  Commercial and Tilcon entered  into a written contract

dated February  8, 1985, which generally  described the scope

of  the work  to  be performed  by  Tilcon and  contained  an

estimated total  cost of "about $2,800,000."   Tilcon started

the site-clearing work around that same time.  DelVicario was

the  supervisor   of  the   project  and   directed  Tilcon's

activities at the work site on a daily basis.   Lechmere  had

wanted  the pad  completed by  March 15,  1985, so  its store

could open  that September in  time for the  holiday shopping

season.   At least in part to meet that timetable, DelVicario

insisted  that Tilcon accelerate its work schedule, requiring

Tilcon's  staff to  work  overtime  and  necessitating  extra

equipment and supplies.  And, according to Tilcon, DelVicario

insisted that Tilcon perform substantial work at the shopping

center  site that  went  beyond the  description  of the  job

contained in the  February 8 contract; Tilcon refers to these

additional tasks as "extras."  

     Work was completed on schedule, but a dispute soon arose

as  to  Tilcon's compensation.   Tilcon  claimed that  it was

entitled  to  additional  compensation for  the  "extras"  it

performed at DelVicario's  direction.  Commercial disagreed--

it believed  that Tilcon had agreed to  a "guaranteed maximum

price"  and had  been paid  in full--and  refused to  pay the

final three  bills  submitted  by  Tilcon.   Tilcon  filed  a

mechanic's  lien on the property  under Rhode Island law, and

                             -3-

on February 7, 1986, brought an action against Commercial and

Lechmere in Rhode Island Superior Court to enforce that lien.

Pursuant  to the  Rhode Island  statute, Commercial  posted a

$1.2 million bond to release the lien, and the action proceed

in rem against the bond.1
      

     Following  a seven-day  bench trial  the superior  court

found in favor of  Tilcon.  In  a 28-page opinion, the  court

found  that  Tilcon  was  not bound  by  the  estimated price

contained  in the  original February  8 contract.   The court

found  that Tilcon was bound by a maximum price of $3,095,000

contained in a May 8 letter  to Commercial, but that a number

of tasks were excluded  from this price.  Finally,  the court

found that Tilcon  was entitled to  compensation on a  "cost-

plus"  basis for  numerous  "extras" performed  at the  site,

pursuant to the oral assurances of DelVicario.

     Under Rhode Island  law Tilcon could recover in the lien

enforcement  proceeding only  for  work performed  within the

120-day  period prior  to notice  of the lien  (the so-called

"lien period").   The court expressly  found that Tilcon  was

entitled to compensation for work performed prior to the lien

                    

     1The  mechanic's lien statute  provides that respondents
can  secure  the release  of a  lien  by depositing  with the
registry of the court  "cash equal to the total amount of the
accounts  and demands  of all  persons claiming  liens" or  a
surety bond in that amount in lieu of cash.  R.I. Gen. Laws  
34-28-17.  In this case, Commercial deposited a  $1.2 million
bond with the registry  and, apparently without any objection
from Tilcon as to the amount, the lien was discharged.

                             -4-

period,  but held  that  it had  no  power to  include  these

amounts in  its judgment.   The  court left it  to Tilcon  to

"pursue this claim in another appropriate proceeding."  

     The   Rhode  Island   court  entered   judgment  against

Commercial and Lechmere for $1,329,207.03,  which represented

the court's  painstaking calculation of the  compensation due

Tilcon for work at the Bald Hill site during the 120-day lien

period.   Tilcon,  however, was  able  to collect  only  $1.2

million,  the  amount of  the bond  that  had been  posted to

release the  lien, leaving a $129,207  deficiency between the

judgment   and  Tilcon's  recovery.    The  superior  court's

decision was  affirmed in  all respects  by the  Rhode Island

Supreme Court.   Tilcon Gammino, Inc.  v. Commercial Assocs.,
                                                            

570 A.2d 1102 (R.I. 1990).

     During the pendency  of the mechanic's lien  proceeding,

Lechmere  and Commercial filed  this separate  action against

Tilcon  in Rhode  Island  Superior Court  seeking damages  of

their  own  arising out  of the  Bald  Hill project.   Tilcon

removed  the  action  to  federal  district  court  based  on

diversity  of  citizenship.   It  also  filed a  counterclaim

against Lechmere and Commercial seeking payment for work that

was  not  recoverable  in  the  lien  action--the  deficiency

between the judgment and the  bond, and compensation for work

done prior to the  lien period--on various theories including

breach of contract, unjust enrichment and fraud. 

                             -5-

     After the final decision in the  lien case, Tilcon moved

for  summary judgment  on  its counterclaim  in this  action.

Tilcon argued that the Rhode  Island Superior Court had found

as  a matter  of  fact  that  DelVicario bound  Lechmere  and

Commercial to  a series  of oral  contracts with  Tilcon, and

that  Tilcon was  owed  specific amounts  for work  performed

under those  contracts.   Tilcon claimed that  Commercial and

Lechmere  were collaterally estopped  from relitigating these

issues, and that Tilcon was therefore entitled to judgment as

a  matter  of law  for the  $129,207 discrepancy  between the

superior  court's judgment  and  the $1.2  million bond,2  as

well as approximately $600,000 for work at the Bald Hill site

prior to the lien period.

     The district  court agreed that Commercial  and Lechmere

are bound  by the Rhode  Island court's factual  findings but

only  those that were necessary  to its judgment.   Thus, the

court  held  that  the  Rhode  Island  decision  conclusively

established that  Tilcon was owed an  additional $129,207 for

work  performed  during the  lien period.   But  the district

court  concluded  that  the  Rhode Island  decision  did  not

resolve the issue of  who was liable for the  deficiency, nor
                         

                    

     2Tilcon claims  that it is  entitled to recover  in this
case  the  entire  $1,329,207  amount  of  the  Rhode  Island
judgment.  But it  is undisputed  that Tilcon  recovered $1.2
million by executing on the bond, and Tilcon does not explain
why  it is entitled to more than the $129,207 discrepancy for
the lien period.

                             -6-

did  it  establish Tilcon's  entitlement to  compensation for

work prior to the lien period.  The case  proceeded to trial.

The original  claims of  Lechmere and Commercial  having been

dismissed,  the  case was  now  limited  to Commercial's  and

Lechmere's liability, if  any, for work done  by Tilcon prior

to  the lien  period.   The dispute  was further  narrowed by

stipulations.   Pursuant  to its  prior ruling,  the district

court  instructed  the jury  that  certain  facts, primarily,

Tilcon's  entitlement to  $129,207 for  work done  during the

120-day period, had been  established in prior litigation and

should not  be reconsidered.   The court  therefore precluded

the parties from introducing any evidence regarding work done

during the lien period.  It was determined that liability for

the $129,207  deficiency would  be imposed upon  whichever of

the  defendants was  held  liable at  trial for  the pre-lien

work.

     At  trial, Tilcon  introduced  evidence seeking  to show

that Commercial  and  Lechmere  were  liable  for  additional

payments for work done outside the lien period.  At the close

of  Tilcon's case the court  granted judgment as  a matter of

law  for Lechmere  with respect  to all  of Tilcon's  claims,

leaving only  the claims against Commercial;  the reasons for

the court's  ruling are more conveniently  discussed later in

this opinion.  The jury  then returned a verdict in  favor of

Tilcon against  Commercial for $307,500.   The district court

                             -7-

added  to this  amount  the $129,207  deficiency between  the

judgment in the mechanic's  lien action and the bond,  made a

number of other adjustments to reflect the stipulations among

the  parties, and  then entered judgment  in favor  of Tilcon

against Commercial for the resulting amount of $268,903, plus

prejudgment interest on a certain portion of the debt. 

     Tilcon now  appeals.   It argues  that the Rhode  Island

court's factual findings, if given  proper preclusive effect,

required that judgment for the $129,207 deficiency be entered

against Lechmere  as well as against  Commercial.  Commercial

has  not made any appearance  in this appeal;  if the limited

partnership  is a  defunct  or insolvent  entity, that  might

explain  why it is important  to Tilcon to  obtain a judgment

against  Lechmere.    Tilcon   also  argues  that  collateral

estoppel made  Lechmere and  Commercial both liable  for some

$600,000 in work  done prior to the  lien period and  that it

was error to submit this issue to  the jury, which found only

$307,500 due  from Commercial.    Finally, preclusion  aside,

Tilcon argues that the  court erred by granting  judgment for

Lechmere as a matter of law on each of Tilcon's claims.  

     We start  by considering  the collateral  estoppel issue

before turning to Tilcon's individual claims against Lechmere

and  Commercial.  "Federal courts  are bound by  state law on

the preclusive effect of state judgments."  Carillo v. Brown,
                                                            

807 F.2d  1094, 1101 (1st  Cir. 1986);  see also 28  U.S.C.  
                                                

                             -8-

1738;  Gonsalves v. Alpine Country Club, 727 F.2d 27, 29 (1st
                                       

Cir. 1984).  Thus, the district court was obliged to give the

Rhode Island  Superior Court's decision  the same  preclusive

effect  that the  Rhode Island  courts themselves  would give

that decision.  

     In  order for  the  doctrine of  collateral estoppel  to

apply under  Rhode Island law, "several  requirements must be

satisfied:   there must be  an identity of  issues; the prior

proceeding must  have resulted  in a  final  judgment on  the

merits;  and the  party against  whom collateral  estoppel is

sought must  be the same as  or in privity with  the party in

the prior proceeding."   State  v. Chase, 588  A.2d 120,  122
                                        

(R.I. 1991).  Like  a set of Chinese boxes,  the identity-of-

issues  element, which is the  crucial one in  this case, has

three components of its  own:  "[F]irst, the issue  sought to

be  precluded must be identical  to the issue  decided in the

prior proceeding;  second, the issue must  actually have been

litigated; and  third, the  issue must necessarily  have been

decided."  Id. at 123.
             

     In addition,  Rhode Island  courts, consistent  with the

prevailing  approach,  "allow  themselves   a  good  deal  of

latitude  in  applying  the  rule [of  collateral  estoppel],

observing the spirit of it rather than the letter."   Hill v.
                                                             

Bain,  15  R.I.  75,  23 A.  44  (1885);  see  also Klein  v.
                                                             

Commissioner,  880 F.2d  260,  264 (10th  Cir. 1989)  ("Trial
            

                             -9-

courts  are granted  broad discretion  in the  application of

collateral estoppel.").  We  think this "latitude" was vested

in  the district  court  below, as  it  was sitting  in  this

diversity case as a surrogate for a Rhode Island tribunal. 

     Tilcon's principal argument is  that the district  court

failed  to give proper preclusive effect  to the Rhode Island

Superior  Court's finding  that DelVicario  was acting  as an

agent  of Lechmere  and as  such bound  Lechmere to  the oral

contracts  with Tilcon.    Tilcon's argument  is  based on  a

single paragraph  in the  superior court's decision  in which

the  court stated  that DelVicario,  in making  assurances of

payment  to Tilcon,  was "acting  within the  scope of  [his]

authority  for  and  on  behalf  of  .  .  .  Commercial  and

Lechmere," and therefore bound his principals to the contract

modifications.   We agree with  the district  court that  the

issue of Lechmere's contractual relationship with  Tilcon was

not one that "must necessarily have been decided" in the lien

proceeding, and  therefore  is  not  entitled  to  preclusive

effect under Rhode Island law.  Chase, 588 A.2d at 123.
                                     

     The "necessarily decided" element of collateral estoppel

means in this  context that  an issue was  not only  actually

decided but also necessary to the judgment.  See  Restatement
                                                

(Second) of Judgments    27 (determination must be "essential

to the judgment").  The reasons for this condition are that a

collateral  issue,  although it  may  be  the  subject  of  a

                             -10-

finding, is  less likely to receive  close judicial attention

and the  parties  may well  have  only limited  incentive  to
   

litigate  the issue fully since it is not determinative.  See
                                                             

Wright,  Miller &amp;  Cooper, Federal  Practice and  Procedure  
                                                           

4421 at 193 (1981 ed.).  Under these circumstances, extending

the force of the unnecessary finding into a different case is

deemed too risky and possibly unfair.

     Liability under the Rhode Island mechanic's lien statute

is not dependent on contract.  The statute creates a right of

action against a parcel of property whenever improvements are

made "by  oral or  written contract  with or  at the  oral or
                                                             

written request of" the  landowner.  R.I. Gen. Laws    34-28-
                  

1(a) (emphasis  added).3   Thus, Lechmere's liability  in the

superior court  suit (or  more technically, the  liability of

Lechmere's property) flowed from its status as owner  and the

fact  that  Tilcon's   work  on  the  property  was  done  at

Lechmere's request.   A "request,"  of course, is  a far  cry

                    

     3Deleting   irrelevant   language,   the  Rhode   Island
mechanic's lien statute provides as follows:

     Whenever any  building .  . . or  other improvement
     shall be  constructed  . .  .  by oral  or  written
     contract with or  at the oral or written request of
     the owner  thereof, . .  . such building  . .  . or
     other  improvement,  together  with  the  land,  is
     hereby made liable and shall stand subject to liens
     for  all  the  work  done  by  any  person  in  the
     construction . . . of such  building . . . or other
     improvement,  and  for  the  material  used in  the
     construction  .  .  .   thereof,  which  have  been
     furnished by any person.

                             -11-

from  a  contract.    To  be  sure,  findings  regarding  the

existence  and  terms  of  the  contract  governing  Tilcon's

assignment at the work site were necessary to a determination

of  the amount of Tilcon's lien, since under Rhode Island law
              

the  amount of  the  lien is  dependent  upon the  underlying

contract.  See Art Metal Constr. Co.  v. Knight, 56 R.I. 228,
                                               

185  A. 136  (1936).   But  whether  that contract  was  with

Commercial  alone,  or Commercial  and Lechmere  jointly, was

irrelevant.  All that mattered was that Tilcon was acting "at

[Lechmere's] request," a fact that was undisputed.4 

     But we do  not rest  entirely upon this  parsing of  the

lien statute.   If a factual issue  were vigorously litigated

in  a  prior proceeding  and were  the  focus of  the court's

decision,  preclusion might  well be  appropriate even  if in

hindsight  it  could be  shown that  the  issue was,  in some

sense, not strictly essential  to the outcome.  After  all, a

factual  determination is  not inherently  untrustworthy just

because the result could  have been achieved by a  different,

shorter and more efficient route.  In this case, however, the

single  sentence in question seems  to us to  fall within the

principle that  "if an inquiry  reveals that the  matters had

`come under consideration only collaterally or incidentally,'

                    

     4The  Rhode  Island  Supreme Court's  opinion  refers to
Lechmere only twice.   It  does not say  that DelVicario  was
Lechmere's  agent,  nor  does  it  suggest  that  privity  of
contract  between  Lechmere and  Tilcon  is  relevant to  the
outcome.

                             -12-

preclusion  is  denied."    Federal Practice  and  Procedure,
                                                            

supra,   4421 at 194 (quoting Norton v. Larney, 266 U.S. 511,
                                              

517 (1925)).

     The Rhode Island  Superior Court states  that DelVicario

was an  agent of  Lechmere only at  one point in  its 28-page

decision, and there only in passing, somewhat cryptically and

without  any explanation or analysis.  A few pages earlier in

the decision, the court states that DelVicario was "acting as

Commercial's agent and representative  at the job site," with

no mention of Lechmere.  We  do not think it is at  all clear

that,  in the later, single sentence relied on by Tilcon, the

superior  court   meant  to  determine  that  DelVicario  was

Lechmere's agent for purposes  of creating a contract between

Lechmere and  Tilcon.5  We  conclude that this  "finding" was

collateral and not preclusive; and we rest this conclusion on

the joint force  of three  considerations:  the  lack of  any

legal  need  for a  finding of  such an  agency, the  lack of

clarity in  the supposed  finding, and the  earlier, explicit

statement that DelVicario was Commercial's agent.  

                    

     5The later sentence relied upon  by Tilcon occurs in the
context  of a  discussion rejecting  Commercial's claim  that
"extras"   authorized  by  DelVicario  did  not  enlarge  the
liability of Commercial under the written contract; and it is
                       
at  least possible  that the  court meant  no more  than that
DelVicario spoke  for  Commercial and  that Lechmere,  having
contracted   with   Commercial,   was  stuck   with   limited
responsibility for  DelVicario's extras that  flows from  the
mechanic's lien statute.

                             -13-

     Tilcon also  argues that the district  court should have

given preclusive effect to  the Rhode Island superior court's

findings as  to the amount  owed Tilcon  for its work  at the

Bald  Hill  site  prior to  the  start  of  the lien  period.

Although  the Rhode Island court did make some findings as to

amounts owed for certain items of pre-lien work,  it declined

to do so for other items, stating that it had  no power under

the mechanics lien statute to award compensation for the pre-

lien work.  Accordingly,  the pre-lien findings are on  their

face matters that it was not necessary to decide.

     Tilcon seeks  to rescue  these findings by  arguing that

they were necessary in order to determine the validity of the

"guaranteed maximum price" defense  put forward by Commercial

and Lechmere.   Under Rhode Island law, to the  extent that a

contractor  has promised  to do a  job for  a fixed  sum, the

amount  that  can   be  collected  for  that  job  under  the

mechanic's lien  statute is  limited to the  contract maximum

less whatever payments have already been made.  See Art Metal
                                                             

Constr. Co., 185  A. at  146-47.   Therefore, Commercial  and
          

Lechmere  argued in the lien case that the guaranteed maximum

price  agreed  to by  Tilcon  represents  an outer  limit  of

recovery.   To  reject the defense,  says Tilcon,  the extras

done  prior  to  the  lien  period  had  to  be  individually

analyzed.

                             -14-

     This argument  is imaginative  but not persuasive.   The

Rhode  Island trial judge  ultimately rejected the guaranteed

maximum price defense on multiple grounds:  he found that the

original   contract  price  relied  upon  was  a  preliminary

estimate and that the later binding price was higher, covered

only work done after  May 8, and covered only  work specified

in  the contract  and not  numerous extras.    The guaranteed

maximum price defense then faded  from view in his  decision,

and there was no careful summing up of the pre-lien extras in

order to reject the  defense.  Indeed, as already  noted, the

judge  declined to quantify a number of pre-lien items on the

ground that they were not compensable.

     In  the  end,  it is  not  clear  why  the Rhode  Island

Superior  Court made specific findings as to some of the pre-
                                                 

lien items.  He  did not explain why he did  so and the issue

was not discussed on appeal.  But there is no indication that

the  trial  judge  in the  lien  case  followed  the line  of

reasoning urged by  Tilcon.  It is up  to Tilcon to establish

the requisites  for collateral estoppel, see Federal Practice
                                                             

and  Procedure, supra,    4420 at 185,  and in  our view this
                     

effort fails as  to the  pre-lien period findings.   This  is

enough  for our  purposes  although we  note that  Lechmere's

liability  would not  be  affected since--as  we shall  see--

Lechmere is not liable in any event.

                             -15-

     The district court's  ruling on the collateral  estoppel

issues did  not prevent  Tilcon from attempting  to prove  at

trial  in  this case  that Lechmere  in  fact entered  into a

contract with Tilcon, or that Lechmere is liable to Tilcon on

one of the other theories set forth in Tilcon's counterclaim.

Tilcon  did attempt to prove such liability, but at the close

of Tilcon's  case the  district court  entered judgment as  a

matter  of law  in  favor of  Lechmere  on each  of  Tilcon's

claims.   Tilcon  says this  was error  as to  three claims--

breach of contract, quantum meruit, and unjust  enrichment6--
                                  

but we agree with the district court's entry of judgment.

     At trial, Tilcon attempted  to prove that DelVicario was

acting as an agent  of Lechmere when he made  oral assurances

to  Tilcon that  it  would  be  paid  for  the  "extra"  work

performed  at the  site,  and therefore  bound Lechmere  to a

series  of oral agreements.  The question posed, on review of

a directed verdict, is whether  a reasonable jury could  only

have  reached the same conclusion as the trial court, and our

review  is  plenary.   See NewHarbor  Partners, Inc.  v. F.D.
                                                             

Rich. Co.,  961  F.2d 294,  298  (1st  Cir. 1992).    We  are
         

convinced that  there was  insufficient evidence to  permit a

                    

     6Tilcon's  remaining  claims  were  fraud,  constructive
trust, and violation of  the Racketeer Influenced and Corrupt
Organizations  Act ("RICO"), 18 U.S.C.     1961 et  seq.  The
                                                       
RICO  count was dismissed prior  to trial, and  judgment as a
matter of law was entered on the fraud and constructive trust
counts.  Tilcon does not pursue these claims on appeal.

                             -16-

reasonable  jury  to find  that  DelVicario was  an  agent of

Lechmere capable of binding Lechmere to a contract.

     Under Rhode Island law, agency  may be based upon either

actual authority and  apparent authority.   See Menard &amp;  Co.
                                                             

Masonry Building  Contractors v.  Marshall Bldg. Sys.,  Inc.,
                                                            

539  A.2d  523,  527  (R.I. 1988)  (adopting  formulation  of

Restatement (Second)  of Agency).  The  first theory requires

evidence of an actual understanding between the principal and

agent  that the latter  is to  act on  behalf of  the former.

There  was  no suggestion  at trial  of any  actual agreement

between Lechmere and DelVicario  under which the latter would

act  as  Lechmere's  agent  with respect  to  the  Bald  Hill

project.    Accordingly,  Tilcon  presses only  a  theory  of

apparent authority.  

     Apparent   authority   "arises   from  the   principal's

manifestation of such  authority to the  party with whom  the

agent contracts."  Menard &amp; Co. Masonry Building Contractors,
                                                            

539 A.2d at 526.  In other words, the focus is on the conduct

of the principal, not the putative agent.  The principal must

act  in a way  that leads a  third party to  believe that the

agent is authorized  to act on the  principal's behalf, here,

authorized  to  enter   into  contractual  arrangements   for

Lechmere with Tilcon.  And, finally, the third party's belief

in  the agent's authority to  act on behalf  of the principal

                             -17-

must be a reasonable one.  See Rodrigues v. Miriam Hosp., 623
                                                        

A.2d 456 (R.I. 1993); Restatement (Second) of Agency   267.  

     Here, the only evidence of any representations and other

conduct  by Lechmere regarding DelVicario's authority was the

testimony of Thomas Gammino, Tilcon's chief engineer and vice

president, that Lechmere's people instructed Tilcon to follow

DelVicario's  instructions  on  the   job  site.    But  that

statement would  not permit  a reasonable person  to conclude

that  DelVicario's promises regarding  payment for  work were

the promises of Lechmere.  Indeed, the statement is perfectly

consistent with the  opposite interpretation:   that Lechmere

was  leaving  the  site-clearing   work  to  Commercial   and

Commercial's man  DelVicario, and  was keeping its  own hands

out of it.  This is also true of the fact that DelVicario may

have  been  motivated  in  directing Tilcon's  actions  by  a

timetable  and  other  requirements  imposed  by Lechmere  on

Commercial.    Tilcon  points  to no  other  evidence  of any

actions  by Lechmere  affirming  DelVicario's authority,  and

this gap in proof is fatal to Tilcon's contract claim against

Lechmere.

     In  addition,  even  if  Tilcon in  fact  believed  that

DelVicario  represented Lechmere,7  no reasonable  jury could

                    

     7In fact, the trial testimony  was quite equivocal as to
whether  Tilcon actually believed that DelVicario represented
Lechmere.  Only two witnesses testified for Tilcon:  its vice
president, Thomas Gammino;  and its foreman at the  Bald Hill
site, Robert Pion.   Both witnesses described DelVicario as a

                             -18-

have found that  belief justifiable.   At the  outset of  the

project  Tilcon joined forces with DelVicario to make a sales

pitch to Lechmere; there is no suggestion that DelVicario had

any prior affiliation with  Lechmere.  Gammino testified that

it was Tilcon's practice to enter into written contracts with

all parties with whom Tilcon dealt, yet Tilcon  never entered

into  or  sought  to  enter  into  a  written  contract  with

Lechmere.   Before beginning  work Tilcon performed  a credit

check  on Commercial,  but made  no such  inquiries regarding

Lechmere.

     Nor  did Lechmere take  a more prominent  role once work

began.  The May  8 letter containing a binding  maximum price

was  submitted  by Tilcon  to  Commercial,  not to  Lechmere.

Tilcon  submitted all  its bills  to Commercial  for payment.

Lechmere  was never  involved in  the billing  process, never

asked to examine any of Tilcon's invoices, and never made any

direct payments to Tilcon.   Even when the final  three bills

went   unpaid,  Tilcon   did   not  look   to  Lechmere   for

compensation.  Lechmere was  simply one of the  anchor stores

in  a larger  project developed  by Commercial.   It  was not

until  litigation, and  the need  for a  deeper pocket,  that

Lechmere was brought into the fray. 

                    

representative of Commercial.  But Gammino did testify at one
point (after considerable  hedging) that he  "believed . .  .
that Tony  Delvicario was in  charge for  both people,"  i.e.
                                                             
Commercial  and Lechmere, and  so we will  assume that Tilcon
introduced enough evidence, if barely, to show actual belief.

                             -19-

     We  also  agree  with  the  district  court's  entry  of

judgment for  Lechmere on  the unjust enrichment  claim.   To

recover on a  theory of unjust enrichment  under Rhode Island

law, the plaintiff must  show that it conferred a  benefit on

the  defendant  "in  such  circumstances  that  it  would  be

inequitable for  the defendant to retain  the benefit without

payment to  the plaintiff  for the  value thereof."   Anthony
                                                             

Corrado,  Inc. v. Menard  &amp; Co.  Bldg. Contractors,  589 A.2d
                                                  

1201,  1202  (R.I. 1991).   This  claim  under state  law was

equitable  and was tried to the district judge.  We share the

district court's  view that Tilcon offered  "no evidence that

would suggest that the enrichment  [to Lechmere] if there was

any  was unjust,"  and therefore  need not  concern ourselves

with the standard of appellate review on this issue.8

     As  the district court noted, virtually  all of the work

done by Tilcon  at the Bald Hill  site benefitted all  of the

participants in  the  project--including Commercial  and  the

other stores  in the shopping complex--and  Tilcon offered no

principled way of isolating  the economic benefit to Lechmere

alone.   The district  court also found  that Lechmere's CORE

                    

     8Courts   have   disagreed  whether   unjust  enrichment
presents  a question of fact that is reviewed under a clearly
erroneous standard,  or a question  of law reviewed  de novo.
                                                            
Compare Commodity  Futures Trading Comm'n v. Heritage Capital
                                                             
Advisory Servs., Ltd.,  823 F.2d  171, 172  (7th Cir.  1987),
                     
with In  re Estate of Zent, 459  N.W.2d 795, 798 (N.D. 1990).
                          
Needless  to  say,  such  an  all-or-nothing  choice  is  not
compelled.

                             -20-

agreement with Commercial included a payment to Commercial to

arrange  for  the  site-clearing  work.   Tilcon  offered  no

evidence that the benefit to Lechmere resulting from Tilcon's

work at the site  exceeded that payment.  Finally,  the court

traced  the   relationship   between  Tilcon   and   Lechmere

throughout the  project and concluded,  based on the  many of

the same factors recited above, that Tilcon had no reasonable

expectation of  compensation from  Lechmere for work  done at

the site.

     Tilcon  suggests  that the  court's  collateral estoppel

ruling  precluded the  introduction of  any evidence  of work

done  during  the lien  period  and  deprived Tilcon  of  the

opportunity  to  show  that  work  done  during  that  period

specifically benefitted Lechmere.  But there is no indication

that the  work  done  during  the lien  period  was  uniquely

beneficial to Lechmere.   We  also do not  agree with  Tilcon

that the  district court  erroneously believed that  proof of

fraud  was  necessary  in  order  to  recover  on  an  unjust

enrichment  theory.    Rather,  the  court  merely  observed,

consistent  with Rhode Island case law, that the existence of

fraud or other wrongdoing is  a factor in determining whether

the retention of  a benefit  would be inequitable.   See  R&amp;B
                                                             

Elec. Co., 471 A.2d at 1354. 
         

     Turning  finally to the quantum meruit  claim, this is a
                                           

quasi-contract claim which, as the district court noted, is a

                             -21-

close cousin  to the  equitable remedy of  unjust enrichment.

Historically,  the claim allowed  a party to  collect for the

value of services or supplies  furnished to another, based on

an implied (at  law) promise to  pay, even though all  of the

requisites  of a formal contract  might not be  present.  See
                                                             

Farnsworth,  Contracts,    2.20 at  103 (2d  ed. 1990).   The
                      

district  court  made clear  that,  even if  this  claim were

directed against  Lechmere, the court would  direct a verdict

on it for essentially the same reasons given  by the court in

ruling on the unjust enrichment claim.9  

     In  its brief in  this court, Tilcon  chooses instead to

assimilate its  quantum meruit  claim to its  contract claim,
                              

stressing  as  to  both  claims  the  same  facts  concerning

DelVicario's actions in directing the work to meet Lechmere's

deadlines.  The chameleon character  of quasi-contract claims

is  such that  Tilcon can  fairly stress  this  affinity with

contract.  But this in turn means that Tilcon must have had a

reasonable basis for looking to Lechmere for payment, and for

reasons already given we do not think that there was any such

relationship  between Lechmere  and  Tilcon,  either real  or

reasonably  imagined by  Tilcon.   See generally  Farnsworth,
                                                

                    

     9The  district court  believed  with considerable  basis
that in Tilcon's complaint the  quantum meruit claim, as well
                                              
as  the  contract claim,  had  been  directed solely  against
Commercial;  but in each case the district court ruled in the
alternative  that the claim lacked merit so we do not discuss
the pleading issue further. 

                             -22-

supra, at 107 ("Nor can a party that has made a contract with
     

another   generally   disregard   the   contract   and  claim

restitution  from a  third  person for  performance  rendered

under the  contract, even if the third  person has benefitted

from that performance.").  

     In sum, we think that the district court ably sorted its

way through a complex commercial dispute, further complicated

by  the prior determinations in the mechanic's lien case.  It

may well be that Tilcon has not recovered all that it is due,

possibly because of default by the  partnership with which it

contracted  and partly because of its failure to insist on an

adequate bond in the lien proceeding.  But the decision to do

the work  without a contract with or  guarantee from Lechmere

was  Tilcon's  own  decision.   There  was  no  error in  the

district court's rulings.

     Affirmed.
             

                             -23-
