California Civil Jury Instructions (CACI) (2017)

374. Common Count: Mistaken Receipt

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374.Common Count: Mistaken Receipt
[Name of plaintiff] claims that [name of defendant] owes [him/her/it]
money [that was paid/for goods that were received] by mistake. To
establish this claim, [name of plaintiff] must prove all of the following:
1. That [name of plaintiff] [paid [name of defendant] money/sent
goods to [name of defendant]] by mistake;
2. That [name of defendant] did not have a right to [that money/the
3. That [name of plaintiff] has asked [name of defendant] to return
the [money/goods];
4. That [name of defendant] has not returned the [money/goods] to
[name of plaintiff]; and
5. The amount of money that [name of defendant] owes [name of
New December 2005
Sources and Authority
• “ ‘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.)
• “It is well settled that no contract is necessary to support an action for money
had and received other than the implied contract which results by operation of
law where one person receives the money of another which he has no right,
conscientiously, to retain. Under such circumstances the law will imply a
promise to return the money. The action is in the nature of an equitable one and
is based on the fact that the defendant has money which, in equity and good
conscience, he ought to pay to the plaintiffs. Such an action will lie where the
money is paid under a void agreement, where it is obtained by fraud or where it
was paid by a mistake of fact.” (Stratton v. Hanning (1956) 139 Cal.App.2d
723, 727 [294 P.2d 66], internal citations omitted.)
• Restatement First of Restitution, section 28, provides:
A person who has paid money to another because of a mistake of fact and who
does not obtain what he expected in return is entitled to restitution from the
other if the mistake was induced:
(a) by the fraud of the payee, or
(b) by his innocent and material misrepresentation, or
(c) by the fraud or material misrepresentation of a person purporting
to act as the payee’s agent, or
(d) by the fraud or material misrepresentation of a third person,
provided that the payee has notice of the fraud or representation
before he has given or promised something of value.
• “Money paid upon a mistake of fact may be recovered under the common count
of money had and received. The plaintiff, however negligent he may have been,
may recover if his conduct has not altered the position of the defendant to his
detriment.” (Thresher v. Lopez (1921) 52 Cal.App. 219, 220 [198 P. 419],
internal citations omitted.)
• “ ‘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
• “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.)
Secondary Sources
4 Witkin, California Procedure (4th ed. 1997) Pleading, § 515
12 California Forms of Pleading and Practice, Ch. 121, Common Counts, § 121.25
(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
375–379. Reserved for Future Use