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.
In order to support an action for money had and received, a person against whom the action is brought must be shown to have received, either money,1 or something which is taken as the equivalent of money,2 belonging to the person by whom the tion is brought or for his use. On the one hand, an action can not be had for money had and received where it is not shown that the person against whom it was brought, received either the money or property belonging to or for the use of the plaintiff.3 This is simply an application of the general principle, that an action on an implied contract cannot be made the means of enforcing damages for breach of an express contract.4 One exception to this principle is the case where the only thing remaining for the party in default to do was to pay the money.5 Assumpsit for money had and received cannot be made the means for recovering damages for breach of a contract to erect improvements for plaintiff's use, upon a right of way conveyed by plaintiff to defendant,6 nor damages for a bailee's selling lum-consigned to him at less than the price agreed upon.7 If B sues one to whom B alleges that insurance money has been paid to the use of B,8 B cannot recover if the evidence discloses that no money was had and received, but that B's action is really for a breach of a contract to effect the insurance. Thus an action for money had and received will not lie in favor of B against A where X has done work for A, which should have inured in whole or in part to B.9 To allow recovery in this form of action the money paid must have come to the possession of the person against whom the action is brought, or have been paid to his use. B had given his wife, X, some money which she claimed to have invested. Subsequently X forged B's name to a note which X discounted. Subsequently an action was brought against B and X on this note. X then forged B's name to another note, which X discounted. A part of the proceeds of this note she applied to paying off the note sued upon in the first action, and part she applied to paying certain bills for which her husband was primarily liable. X told B that the money thus received came from the former investment of B's money. It was held that A, who had furnished the money on the second forged note, could recover from B that part of the money applied to the payment of the bills mentioned, but could not recover that part applied to the payment of the first forged note, since B was not liable thereon, and the money did not come into his hands, nor was it paid for his use.10 So if an action is brought against a merchant for money had and received, on the ground that goods bought by his agent without his authority were delivered at his store and sold by him, the evidence must show that he sold such goods and received the money therefor.11 A and B agreed to buy land on their joint interest, and A was to negotiate the purchase ; B furnished part of the purchase money, and subsequently, on learning that A's representations that the price agreed upon was the lowest possible price and did not include any commissions to A for making the purchase, were false, and that A had an agreement with the vendee whereby A was to receive a certain amount of the last payment to be made as his commission, refused to pay the rest of the purchase price due from him. B was not allowed to recover for money had and received, where A subsequently completed the contract and resold the land at a loss.12 A had a contract for the performance of certain work and labor, and X was a subcontractor. The man whom X employed boarded with B, and when A paid X's employes A retained in his possession the amount owing by each for board furnished by B. B had a contract with X to operate a boarding house for the men at certain sum per week, but B had no contract with A binding A to retain the amount due for such board. A paid the men and retained such amounts; but when such men were paid, X owed A for supplies to an amount in excess of the amount so retained by A. It was held that B had no right of action against A for money had and received, since A had received nothing from any person to the use of B.13 A, B and C took part in a forgery, by means of which X was induced to pay to A a sum of money. It was held that X might recover from A, B and C for money had and received, if the understanding of the wrongdoers was that A was collecting it for their common interests. X's right of recovery was not affected by the fact that A had appropriated all the frauds of this crime, and that B and C had in fact received no part thereof from A.14 A, X's agent, forged A's name on certain stock certificates, sold them to B, deposited the money in A's name and then embezzled it. It was held that this was not such receipt by A that B, on being obliged to return the stock certificates, could maintain an action against A for such money had and received.15 On the other hand, it is not necessary that the person against whom an action for money had and received is brought, should have received money belonging to, or to the use of the plaintiff. If he has taken something as the equivalent of the money, he is liable in this action.16 Thus, where he
6 Rushton v. Davis, 127 Ala. 279; 28 So. 476.
7 Pettyjohn v. Bank, 101 Va. Ill; 43 S. E. 203.
1 St. Louis, etc., Co. v. MePeters, 124 Ala. 451; 27 So. 518; Palmer v. Scott, 68 Ala. 380; National Trust Co. v. Gleason, 77 N. Y. 400; 33 Am. Rep. 632; Huganir v. Cotter, 102 Wis. 323; 72 Am. St. Pep. 884; 78 N. W. 423. "The rule is quite elementary that to enable a person to maintain an action for money had and received it is necessary for him to establish that the persons sought to be charged have received money belonging to him or to which he is entitled. That is the fundamental fact upon which the right of action depends. The purpose of such action is not to recover damages but to make the party disgorge, and the recovery must necessarily be limited by the party's enrichment from the alleged transaction." Limited Investment Association v. Investment Association, 99 Wis. 54, 58; 74 N. W. 633; quoted in Johnson v. Abresch Co., 109 Wis. 182; 85 N. W. 348.