This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
2 Snapp v. Stamvood, 65 Ark. 222; 45 S. W. 546; Buckeye (Township of) v. Clark, 90 Mich. 432; 51 N. W. 528; Matthewson v. Powder Works, 44 N. H. 289.
3 St. Louis, etc., Co. v. McPeters, 124 Ala. 451; 27 So. 518; National Trust Co. v. Gleason, 77 N. Y. 400; 33 Am. Dee. 632.
4 P. Dougherty Co. v. Gring, 89 Md. 535; 43 Atl. 912; Stewart Mfg. Co. v. Mfg. Co., 67 N. J. L. 577; 52 Atl. 391; Bushnell v. Coggshall, 10
N. M. 601; 62 Pac. 1101; Royalton v. Turnpike Co., 14 Vt. 311.
5 Stewart Mfg. Co. v. Mfg. Co., 67 N. J. L. 577; 52 Atl. 391.
6Labadie v. Ry., 125 Mich. 419; 84 N. W. 622.
7 Anderson v. Corcoran, 92 Mich. 628; 52 N. W. 1025.
8 Johnston v. Abreseh Co., 109 Wis. 182; 85 N. W. 348.
9 Craig v. Matheson, 32 N. S. 452; Hassard v. Tomkins, 108 Wis. 186; 84 N. W. 174.
10 Mechanics' Bank v. Woodward, 74 Conn. 689; 51 Atl. 1084; and see Brown v. Woodward. 75 Conn. 254; 53 Atl. 112.
11 Lesher v. Loudon. 85 Mich. 52; 48 N. W. 278.
12Blewitt v. McRae, 100 Wis. 153; 75 N. W. 1003. The court held that there had been no rescission in this case, and that B's remedy was by action against A for fraud.
13 Erickson v. Construction Co., 107 Wis. 49; 82 N. W. 694; distinguishing, Sterling v. Ryan, 72 Wis. 36; 7 Am. St. Rep. 818; 37 N. W. 572. as a case where A had agreed with B to retain such money.
14 National Trust Co. v. Gleason, 77 N. Y. 400; 33 Am. Rep. 632. "To charge a party in an action of that character the receipt of money by him directly or indirectly must be established. His complicity in the crime is not the cause of action, but only an item of evidence tending to establish his interest in the proceeds." National Trust Co. v. Gleason, 77 N. Y. 400, 408; 33 Am. Rep. 632.
15 Fay v. Slaughter, 194 111. 157; 88 Am. St. Rep. 148; 56 L. R. A. 564; 62 N. E. 592; reversing, 94 111. App. 111.
16 Snapp v. Stanwood, 65 Ark. 222; 45 S. W. 546. (Qualifying Hutchinson v. Phillips, 11 Ark. 270. on this point the syllabus of which restricts such action to cases where money only has been received.) takes a note belonging to another as cash, he may be liable to the real owner thereof for money had and received.17 So, where A, B's agent, accepts from X, from whom he is collecting money for B, a note signed by B and endorsed by X, as part payment of such sum, A is liable to B for money had and received.18 So when he receives an order as the equivalent of cash, and converts it, or its proceeds, to his own use, he is liable for money had and received.19 If X, a debtor, conveys to his creditor, A, his stock of goods, and A agrees to pay debts owing by X to B, and other creditors of X, in consideration of such conveyance, A may be liable to B and such other creditors for money had and received, where he takes such goods, treats them as the equiva-lent of money, and converts them into money.20 If A agrees to pay B a certain sum of money out of the proceeds of the sale of certain agricultural produce, B may, after a reasonable time, maintain an action against A for money had and received for B's use in the absence of a showing by A that he has not yet sold such produce, since, after a reasonable time has elapsed, it will be presumed that such sale has been made.21 No recovery can be had in an action for money had and received through mistake, unless either the money or something equivalent thereto has been in fact received.22 Thus A believed that he owed B one hundred and fifty dollars. B knew that the amount was only fifty dollars. In settlement of such claim, A delivered to B a horse which A valued at one hundred and fifty dollars, and which was worth about that sum. It was held that A could not recover from B one hundred dollars as money had and recieved by mistake.23 This case involved the principle that A could not affirm in part and rescind in part. He could not affirm the payment so as to treat his original liability as discharged and vet avoid it as to the terms upon which the payment was made. In the settlement of a claim between A and a village, an illegal assessment imposed by the village was credited on A's account, the village refusing to pay A unless such credit was made. It was held that this did not amount to a payment by A of the illegal assessment, but that it was merely a case of A's failing to collect all that he was entitled to under his original cause of action. Accordingly, limitations ran from the time A's original claim against the village for work accrued, and not from the date when this settlement was made.24 Recovery may be had, however, if something is delivered which is taken as money. Thus, where a payment is made in small notes, which were not money and which were illegally issued, but which were in fact used as money, recovery can be had in such an action.25 So where an agent discharges a principal's debt by applying thereon a debt of the agent's, this is treated as the equivalent of money.26 A, by mistake, gave a negotiable note to B in settlement of an account which had already been paid. It was held that this might be treated as a payment of such account, the note being taken as money, and might justify a recovery.27 A subsequently, after learning the facts, paid the note voluntarily. It was held that he had no right of action to recover the amount thus paid by him, although under proper pleadings he might recover the amount of the note for the over payment made by giving it. This action lies only in favor of the person who is the owner of the money which is the subject of the action. If A receives B's money, X cannot maintain an action against A therefor. Thus, where X drew a draft which was subsequently altered, the amount being raised, and the drawee bank accepted and paid such raised draft, and charged X in its account for the amount of the draft as raised, X cannnot recover against A for money had and received, since A has not received any of X's money.28 An action for money had and received cannot be maintained against one who is known to the lender to be merely a surety, receiving none of the money advanced.29
Seavey v. Dana, 61 N. H. 339; Mat-thewson v. Powder Works. 44 N. H. 2s9. "To maintain assumpsit for money had and received it must appear that the defendant received the money due the plaintiff or something which he had received as and instead of it, or which he had actually or presumptively converted into money before suit." Peay v. Ringo, 22 Ark. 68, 71; quoted in Snapp v. Stanwood, 65 Ark. 222; 46 S. W. 546.
17 Seavey v. Dana, 61 N. H. 339.
18 Snapp v. Stanwood, 65 Ark. 222; 45 S. W. 546.
19 Bavins v. Bank (1900), 1 Q. B. 270; Buckeye (Township of) v. Clark, 90 Mich. 432; 51 N. W. 528; Bowen v. School District, 36 Mich. 149.
20 Potts v. Bank, 102 Ala. 286; 14 So. 663.
21 Barfield v. McCombs, 89 Ga. 799; 15 S. E. 666.
22 Hendricks v. Goodrich, 15 Wis. 679.
23 Hendricks v. Goodrich. 15 Wis. 670.
24 Brundage v. Port Chester, 102 X. Y. 494 : 7 X. E. 398.
25 Baltimore, etc., By. v. Faunce,
6 Gill (Md.) 68; 46 Am. Dec. 655.
26 Beardsley v. Boot. 11 Johns. (X. Y.) 464; 6 Am. Dee. 386.
27 Gooding v. Morgan, 37 Me. 419.