California Civil Jury Instructions (CACI) (2017)

370. Common Count: Money Had and Received

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370.Common Count: Money Had and Received
[Name of plaintiff] claims that [name of defendant] owes [him/her/it]
money. To establish this claim, [name of plaintiff] must prove all of the
1. That [name of defendant] received money that was intended to be
used for the benefit of [name of plaintiff];
2. That the money was not used for the benefit of [name of
plaintiff]; and
3. That [name of defendant] has not given the money to [name of
New June 2005
Directions for Use
The instructions in this series are not intended to cover all available common
counts. Users may need to draft their own instructions or modify the CACI
instructions to fit the circumstances of their case.
Sources and Authority
• “ ‘The common count is a general pleading which seeks recovery of money
without specifying the nature of the claim . . . . Because of the uninformative
character of the complaint, it has been held that the typical answer, a general
denial, is sufficient to raise almost any kind of defense, including some which
ordinarily require special pleading.’ However, even where the plaintiff has
pleaded in the form of a common count, the defendant must raise in the answer
any new matter, that is, anything he or she relies on that is not put in issue by
the plaintiff.” (Title Ins. Co. v. State Bd. of Equalization (1992) 4 Cal.4th 715,
731 [14 Cal.Rptr.2d 822, 842 P.2d 121], internal citations and footnote omitted.)
• “Although such an action is one at law, it is governed by principles of equity. It
may be brought ‘wherever one person has received money which belongs to
another, and which “in equity and good conscience,” or in other words, in
justice and right, should be returned. . . . The plaintiff’s right to recover is
governed by principles of equity, although the action is one at law.’ ” (Mains v.
City Title Ins. Co. (1949) 34 Cal.2d 580, 586 [212 P.2d 873], internal citations
• “ ‘A cause of action for money had and received is stated if it is alleged [that]
the defendant “is indebted to the plaintiff in a certain sum ‘for money had and
received by the defendant for the use of the plaintiff.’ ” . . .’ The claim is
viable ‘ “wherever one person has received money which belongs to another,
and which in equity and good conscience should be paid over to the latter.” ’ As
juries are instructed in CACI No. 370, the plaintiff must prove that the
defendant received money ‘intended to be used for the benefit of [the plaintiff],’
that the money was not used for the plaintiff’s benefit, and that the defendant
has not given the money to the plaintiff.” (Avidor v. Sutter’s Place, Inc. (2013)
212 Cal.App.4th 1439, 1454 [151 Cal.Rptr.3d 804], internal citations omitted.)
• “ ‘The action for money had and received is based upon an implied promise
which the law creates to restore money which the defendant in equity and good
conscience should not retain. The law implies the promise from the receipt of
the money to prevent unjust enrichment. The measure of the liability is the
amount received.’ Recovery is denied in such cases unless the defendant himself
has actually received the money.” (Rotea v. Izuel (1939) 14 Cal.2d 605, 611 [95
P.2d 927], internal citations omitted.)
• “[S]ince the basic premise for pleading a common count . . . is that the person
is thereby ‘waiving the tort and suing in assumpsit,’ any tort damages are out.
Likewise excluded are damages for a breach of an express contract. The relief
is something in the nature of a constructive trust and . . . ‘one cannot be held
to be a constructive trustee of something he had not acquired.’ One must have
acquired some money which in equity and good conscience belongs to the
plaintiff or the defendant must be under a contract obligation with nothing
remaining to be performed except the payment of a sum certain in money.”
(Zumbrun v. University of Southern California (1972) 25 Cal.App.3d 1, 14–15
[101 Cal.Rptr. 499], internal citations omitted.)
• “ ‘This kind of action to recover back money which ought not in justice to be
kept is very beneficial, and, therefore, much encouraged. It lies for money paid
by mistake, or upon a consideration which happens to fail, or extortion, or
oppression, or an undue advantage of the plaintiff’s situation contrary to the
laws made for the protection of persons under those circumstances.’ ” (Minor v.
Baldridge (1898) 123 Cal. 187, 191 [55 P. 783], internal citation omitted.)
• “ ‘As Witkin states in his text, “[a] common count is proper whenever the
plaintiff claims a sum of money due, either as an indebtedness in a sum certain,
or for the reasonable value of services, goods, etc., furnished. It makes no
difference in such a case that the proof shows the original transaction to be an
express contract, a contract implied in fact, or a quasi-contract.” ’ A claim for
money had and received can be based upon money paid by mistake, money
paid pursuant to a void contract, or a performance by one party of an express
contract.” (Utility Audit Co., Inc. v. City of Los Angeles (2003) 112 Cal.App.4th
950, 958 [5 Cal.Rptr.3d 520], internal citations omitted.)
• “In the common law action of general assumpsit, it is customary to plead an
indebtedness using ‘common counts.’ In California, it has long been settled the
allegation of claims using common counts is good against special or general
demurrers. The only essential allegations of a common count are ‘(1) the
statement of indebtedness in a certain sum, (2) the consideration, i.e., goods
sold, work done, etc., and (3) nonpayment.’ ” (Farmers Ins. Exchange v. Zerin
(1997) 53 Cal.App.4th 445, 460 [61 Cal.Rptr.2d 707], internal citations
• “A common count is not a specific cause of action, . . . rather, it is a simplified
form of pleading normally used to aver the existence of various forms of
monetary indebtedness, including that arising from an alleged duty to make
restitution under an assumpsit theory. When a common count is used as an
alternative way of seeking the same recovery demanded in a specific cause of
action, and is based on the same facts, the common count is demurrable if the
cause of action is demurrable.” (McBride v. Boughton (2004) 123 Cal.App.4th
379, 394 [20 Cal.Rptr.3d 115], internal citations omitted.)
• “The cause of action [for money had and received] is available where, as here,
the plaintiff has paid money to the defendant pursuant to a contract which is
void for illegality.” (Schultz v. Harney (1994) 27 Cal.App.4th 1611, 1623 [33
Cal.Rptr.2d 276], internal citations omitted.)
• “ ‘It is well established in our practice that an action for money had and
received will lie to recover money paid by mistake, under duress, oppression or
where an undue advantage was taken of plaintiffs’ situation whereby money was
exacted to which the defendant had no legal right.’ ” (J.C. Peacock, Inc. v.
Hasko (1961) 196 Cal.App.2d 353, 361 [16 Cal.Rptr. 518], internal citations
Secondary Sources
4 Witkin, California Procedure (4th ed. 1997) Pleading, § 522
12 California Forms of Pleading and Practice, Ch. 121, Common Counts,
§§ 121.24[1], 121.51 (Matthew Bender)
4 California Points and Authorities, Ch. 43, Common Counts and Bills of
Particulars, § 43.25 (Matthew Bender)
1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 9, Seeking or
Opposing Quantum Meruit or Quantum Valebant Recovery in Contract Actions,
9.02, 9.15, 9.32