Harper v. Claxton

62 Ala. 46

• Court: Supreme Court of Alabama
• Decided: December 15, 1878
• Status: Published

Opinion

BRICKELL, C. J.

The complaint, as amended, contained a single count for money had and received. Such a count is appropriate for the recovery of money which the defendant may have in his possession of right belonging to the plaintiff. Privity of contract is not necessary to support the count. The law implies the promise to pay, whenever the defendant has money in his hands the property of the plaintiff, and which'the defendant has no legal right to retain. If the defendant expressly promises to pay, a breach of the promise entitles the plaintiff to recover only a sum certain, or capable of being rendered certain, and a common count is as appropriate for a recovery as a count stating the promise and its breach, unless the promise was conditional and dependent.

Money paid on a contract which has been rescinded, is recoverable on a count for money had and received. — 2 Green. Ev. § 124. There may be no purpose or intention on the part of him who rescinds the contract to pay it, but if by his acts and conduct he induces the other party to believe that he will pay, he is bound to the same extent that he would be if he had in words expressly promised payment.

This is in substance the charge of the court, and the judgment is affirmed.