Since it is essential to quasi contractual obligation that the defendant shall have received a benefit the retention of which is unjust, it would seem that the reversal of a judgment upon technical grounds not affecting the merits of the issue between the parties is not enough to entitle the appellant to recover, unless supported by positive evidence that the retention of the money collected by the respondent would be unjust. As was said in an early Maryland case,1 "The plaintiff cannot recover in this case, unless the defendant's retaining the money is contrary to equity and right. The defendant may resort to any equitable or conscientious defense to repel the claim of the plaintiff and may show the justice of his original claim."2 In a number of cases, however, it is held that a successful appellant is entitled to restitution, whether the reversal affects the merits or not, and that the justice of the claim under which the money was collected is no defense to an action for its recovery.3
Assuming that the respondent may justify his retention of the money notwithstanding the reversal of his judgment, he does not do so by showing that he has a distinct cause of action against the appellant in which he is entitled to recover as much as he has received and retains.4
1 Green v. Stone, 1803, 1 Har. & J. (Md.) 405, 408.
2 Accord: Duncan v. Ware's Extrs., 1833, 5 Stew. & P. (Ala.) 119; 24 Am. Dee. 772; Dupuy v. Roebuck, 1845, 7 Ala. 484, (but see Florence Cotton, etc., Co. v. Louisville Banking Co., 1903, 138 Ala. 588; 36 So. 456; 100 Am. St. Rep. 50); Teasdale v. Stoller, 1896, 133 Mo. 645; 34 S. W. 873 ; 54 Am. St. Rep. 703; Johnston v. Miller, 1898, 31 Nova Scotia 83; Gould v. McFall. 1888, 118 Pa. St. 455; 12 Atl. 336; 4 Am. St. Rep. 606.
3 Florence Cotton, etc., Co. v. Louisville Banking Co., 1903, 138 Ala. 588; 26 So. 456; 100 Am. St. Rep. 50; Hier v. Anheuser-Busch Brewing Assn., 1900, 60 Neb. 320; 83 N. W. 77; Conover v. Scott, 1830, 11 N. J. L. 400; Bickett v. Garner, 1876, 31 Oh. St. 28.
4 Dupuy v. Roebuck, 1845, 7 Ala. 484. And see First Nat. Bank v. Price, 1902, 65 Kan. 853; 70 Pac. 938; Morgan v. Hart, 1848, 9 B. Mon. (48 Ky.) 79.