370 . Common Count: Money Had and Received
[ Name of plaintiff ] claims that [ name of defendant ] owes
[him/her/ nonbinary pr onoun /it] money . T o establish this claim, [ name of
plaintiff ] must prove all of the following:
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 ];
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 suf ficient to raise almost any kind of defense, including some which
ordinarily require special pleading.’ However , even where the plaintif f 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 plaintif f.” ( T itle 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 plainti ff’ s right to recover is governed by
principles of equity , although the action is one at law .’ ” ( Mains v . City T itle Ins.
Co. (1949) 34 Cal.2d 580, 586 [212 P .2d 873], internal citations omitted.)
• “ ‘A cause of action for money had and received is stated if it is alleged [that]
the defendant “is indebted to the plaintif f in a certain sum ‘for money had and
received by the defendant for the use of the plaintif f.’ ” . . .’ 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 plaintif f must prove that the defendant received
money ‘intended to be used for the benefit of [the plaintif f],’ that the money was
not used for the plaintif f’ s benefit, and that the defendant has not given the
money to the plaintif f.” ( A vidor 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, 61 1 [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
plaintif f 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 plaintif f’ 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 W itkin states in his text, “[a] common count is proper whenever the
plaintif f 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
dif ference 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) 1 12 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 omitted.)
• “A common count is not a specific cause of action, . . . rather , it is a simplified
CACI No. 370 CONTRACTS
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 plaintif f has paid money to the defendant pursuant to a contract which is
void for illegality .” ( Schultz v . Harney (1994) 27 Cal.App.4th 161 1, 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 plaintif fs’ 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 omitted.)
Secondary Sources
4 W itkin, California Procedure (5th ed. 2008) Pleading, § 561
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 V alebant Recovery in Contract Actions ,
9.02, 9.15, 9.32
CONTRACTS CACI No. 370
Page last reviewed May 2024
In this two-part series of columns, Touro University, Jacob D. Fuchsberg Law Center professor Rodger D. Citron examines Chief Justice John Roberts’s leadership of the Supreme Court over multiple terms, focusing on his apparent dual objectives of balancing political attunement and advancing conservative ideology.
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