Locher v. Allen

115 So. 147, 22 Ala. App. 305, 1928 Ala. App. LEXIS 15

Opinion

BRICKEN, P. J.

The complaint contained one count in Code form for money had and received.

The trial court overruled the demurrer to pleas 2 and 3. We are of the opinion that there was no error in this ruling. Friddle v. Braun, 180 Ala. 556, 61 So. 59; 34 Cyc. 476.

While the equitable action for money had and received is not founded upon the breach of a contract, a defendant in such action may plead facts showing that in equity and good conscience the plaintiff is not entitled to recover or is indebted to him in a sum greater than the sum claimed by plaintiff, if the indebtedness grows out of the transaction on which plaintiff’s claim is based.

The ruling of the trial court is affirmed.

Affirmed.