272. Wherever one person has money to which, in equity and good conscience, another is entitled, the law creates a promise by the former to pay it to the latter, and the obligation may be enforced by assumpsit.
31 England v. Marsden, L. R. 1 C. P. 529. And see Bay City Bank v. Lindsay, 94 Mich. 176, 54 N. W. 42. But see Edmunds v. Wallingford, 14 Q. B. Div. 811; Keener, Quasi Cont. 390. See "Money Paid," Dec. Dig. (Key-No.) § 1; Cent. Dig. §§ 1-16.
82Ainslie v. Wilson, 7 Cow. (N. Y.) 6G2, 17 Am. Dec. 532; Taylor v. Hig-gins, 3 East, 170; Cumming v. Hackley, 8 Johns. (N. Y.) 202. See "Money Paid," Dec. Dig. (Key-No.) § 1; Cent. Dig. §§ 1-16.
33 Ainslie v. Wilson, 7 Cow. (N. Y.) 662, 17 Am. Dec. 532; Randall v. Rich, 11 Mass. 494. See "Money Paid," Dec. Dig. (Key-No.) § 1; Cent. Dig. §§ 1-16.
Contracts arising from agreement frequently result in the receipt and holding of money by one of the parties for the use of the other; as, where a person is employed by another as agent to receive money, and to account for and pay over the amount received, and receives money by virtue of his employment. In such a case his obligation results from agreement. In some cases a similar obligation is created by law. The receipt by one person of money to which another person is entitled, under some circumstances, creates a debt without agreement, and even against dissent. The law creates the debt and a promise to pay it. The debt is technically described as a debt "for money received by the defendant for the use of the plaintiff," or "for money had and received." It has been said that such an action will lie whenever the defendant has money to which, in equity and good conscience, the plaintiff is entitled;34 that the action is equitable in its nature, and will lie, generally, wherever a bill in equity would lie.35
The obligation thus created from the receipt of money can arise only in respect of money or what is equivalent to money.36 Goods received by the defendant, for instance, cannot be treated as money, so as to support such an action, so long as they are undisposed of and remain in the defendant's hands;37 but it is otherwise where they have been sold and converted into money by him.38 In such a case the right to recover is based on the receipt by the defendant of money belonging- to the plaintiff, and the amount of money received, and not the value of the goods, is the measure of recovery. It follows from this that if the money, or an equivalent, is not received for the goods, even though they may have been sold;39 or if they have been merely exchanged for other goods;40 or if the amount cannot be ascertained 41 - the action will not lie. The plaintiff must seek some other remedy.
34 Lawson's Ex'rs v. Lawson, 16 Grat. (Va.) 230, 80 Am. Dec. 702; Barnett v. Warren, 82 Ala. 557, 2 South. 457; Merchants' Bank v. Rawls, 7 Ga. 191, 50 Am. Dec. 394; Glascock v. Lyons, 20 Ind. 1, 83 Am. Dec. 299; O'Fallon v. Bois-menu, 3 Mo. 405, 26 Am. Dec. 678; Boyett v. Potter, 80 Ala. 476, 2 South. 534; Vrooman v. McKaig, 4 Md. 450, 59 Am. Dec. 85; Teegarden v. Lewis (Ind.) 35 N. E. 24; O'Conley v. City of Natchez, 1 Smedes & M. (Miss.) 31, 40 Am. Dec. 87; Jackson v. Hough, 38 W. Va. 236, 18 S. E. 575. Money paid on judgment before or pending appeal may be recovered after the judgment is reversed. Chapman v. Sutton, 68 Wis. 657, 32 N. W. 683; Clark v. Pinney, 6 Cow. (N. Y.) 297; Kalmbach v. Foote, 79 Mich. 236, 44 N. W. 603; Haebler v. Myers, 132 N. Y. 363, 30 N. E. 963, 15 L. R. A. 588, 28 Am. St. Rep. 589; Scholey v. Halsey, 72 N. Y. 578. See, also, Isom v. Johns, 2 Munf. (Va.) 272; Schaeffer v. Miller, 41 Mont. 417, 109 Pac. 970, 137 Am. St. Rep. 746. See "Money Received," Dec. Dig. (Key-No.) § 1; Cent. Dig. § 1.
35 Culbreath v. Culbreath, 7 Ga. 64, 50 Am. Dec. 375; McCrea v. Purmort, 16 Wend. (N. Y.) 460, 30 Am. Dec. 103; Kennedy v. Insurance Co., 3 Har. & J. (Md.) 367, 6 Am. Dec. 499. See "Money Received," Dec. Dig. (Key-No.) § 1; Cent. Dig. § /.
36 Leake, Cont. 67; Keener, Quasi Cont. 139, 170; Foster v. Dupre, 5 Mart. (O. S. La.) 6, 12 Am. Dec. 466; Brundage v. Village of Port Chester, 102 N. Y. 494, 7 N. E. 398; Lee v. Merrit, 8 Q. B. 820; Nightingale v. Devisme. 5 Burrows, 2589; Scott v. Miller, 3 Bing. N. C. 811; Atkins v. Owen, 4 Adol. & E. 819; Balch v. Patten, 45 Me. 41, 71 Am. Dec. 526; Libby v. Robinson. 79 Me. 168, 9 Atl. 24. See "Money Received," Dec. Dig. (Key-No.) § 2; Cent. Dig. §§ 2-5.
37 Thurston v. Mills, 16 East, 254; Hendricks v. Goodrich, 15 Wis. 679; Moses v. Arnold, 43 Iowa, 187, 22 Am. Rep. 239; Stearns v. Dillingham, 22
It has been said that an action for money had and received will not lie unless there is some privity between the plaintiff and the defendant;42 but there need be no privity other than such as arises out of the fact that the defendant has received the plaintiff's money, which in equity and good conscience he ought not to retain.43