11. Special Contract.-Where a special contract remains open, the remedy is on the contract, but if the contract has been put an end to, an action for money had and received lies to recover any payment that has been made under it: Chesapeake and Ohio Canal Co. v. Knapp, 9 Pet. 541.

12. Statute of Limitations.-Where the promise is laid of a day more than two years prior to the commencement of the action, the complaint is demurrable on the ground that it shows the demand to be barred by the Statute of Limitations: Keller v. Hicks, 22 Cal. 457.

13. Voluntary Payment.-Money voluntarily paid upon a claim of right with full knowledge of all the facts, cannot be recovered back merely because the party at the time of payment was ignorant of or mistook the law as to his liability: Brumagim v. Tillinghast, 18 Cal. 265. Money voluntarily paid cannot be recovered back, even though it could not have been enforced by law: Corkle v. Maxwell, 3 Blatchf. 413; Commercial Bank v. Rochester, 42 Barb. 488. So money advanced on part performance of an agreement cannot be recovered back: Hansbrough v. Peck, 5 Wall. U. S. 497. 14. When Action Lies.-This action lies: 1. Wherever the defendant has received money which he is bound in justice and equity to refund; 2. Where an agent is not the mere carrier or instrument for transmitting the fund, but has the power of retaining it, and before he has paid over the money, has received notice of the plaintiff's claim, and a warning not to part with the fund; 3. Where there exists a privity between the plaintiff and defendant: Cary v. Curtis, 3 How. U. S. 236. The general rule is, that an action for money received lies, whenever money has been received by the defendant, which ex equo et bono belongs to the plaintiff: Tutt v. Ide, 3 Blatchf. 249. Or which in equity and conscience he has no right to retain (Kreutz v. Livingston, 15 Cal. 344), whether there be any privity between the parties or not.

15. When it will not Lie.-The simple facts that A., owing money to B., chose to pay it to C., under the impression that C. was entitled to control the services of B., and to receive all compensation therefor, do not entitle B. to maintain an action against C. for money had and received: Murphy v. Ball, 38 Barb. 262. Under a count for money had and received, a surety cannot recover of his principal for money paid by the surety on account of his liability as such: Child v. Eureka, etc., Works, 44 N. H. 354. To sustain a count for money had and received, it must appear that the defendant had received money due to the plaintiff, or something which he had really or presumptively converted into money before suit brought, or which he had received as money, and instead of it: Hatten v. Robinson, 4 Blackf. (Ind.) 479; Mason v. Waite, 17 Mass. 56; Ainslie v. Wilson, 7 Cow. 662.

No. 140.

ii. Same, against Attorney or Agent, with Demand. [TITLE.]

The plaintiff complains, and alleges:

I. That on the......day of... ..., 187., at the County of State of......, the defendant received from the plaintiff, as the agent of said plaintiff, the sum of.... dollars, to the use of the said plaintiff.

II. That thereafter, and before this action, the said plaintiff demanded payment thereof from the said defend

ant.

III. That the defendant has not paid the same.

[Demand of Judgment.]

16. Action against Agent. -Either one of several joint owners of claims against a third person, they not appearing to be partners, may maintain an action against an agent to recover his share of money had and received by the latter from the debtor: Allen v. Brown, 51 Barb. 86.

17. Assignee.-An assignee to recover a surplus collected by a creditor, or of the assignor, must give notice of the assignment, and make a demand: Sears v. Patrick, 23 Wend. 528.

18. Attorney's Liability.-An attorney is not liable for moneys collected until after a demand, or instructions to remit: Beardsley v. Root, 11 Johns. 464; Stafford v. Richardson, 15 Wend. 302; Taylor v. Bates 5 Cow. 376; Walradt v. Maynard, 3 Barb. 584. But the right to a demand may be waived. And where an attorney set up a claim against his client to a larger amount, it was held a waiver of a demand: Id.; and see Satterlee v. Frazer, 2 Sandf. 141. Attorneys as partners are liable, although it was paid to one of them, and has been demanded from him only: McFarland v. Crary, 6 Wend. 297; compare Ayrault v. Chamberlin, 26 Barb. 83.

19. Corporation. In an action by a corporation to recover funds receiver by the treasurer thereof, if the complaint shows the relation of the parties, and gives a statement of the moneys received by him, and that defendant is indebted, it is sufficient. A demand will be inferred, and if none were made, defendant should pay the debt but not the costs: Second Avenue R. R. Co. v. Coleman, 24 Barb. 300.

20. Demand Essential.-But a count in a complaint in such an action is bad when it is not alleged that demand had been made on defendant; as a party receiving money for the use of another is rightfully in possession till the same is demanded: Reina v. Cross, 6 Cal. 31; Greenfield v. Str. “Grinnell,” Id. 68. One who has received money, standing in the position of trustee, e. g., a collecting agent, is in general not liable in an action for money received, until demand is made, or some breach of trust or duty committed: Walrath v. Thompson, 6 Hill. 540. As where a bank receives money, it cannot be sued until after it has been drawn for: Downes v. Phonix Bank, 6 Hill. 297. But a deposit with a stakeholder, or an illegal wager, may be sued for without a previous demand, where the money has been paid over before the action: Ruckman v. Pitcher, 1 N. Y. 392; see Johnston v. Russell, 37 Cal. 670.

21. Other Parties.-A person, not an attorney, who collects a note at the request of another, is liable for the amount, after a reasonable time, without demand: Hickok v. Hickok, 13 Barb. 632.

22. Sub-Agents.-Money collected by a sub-agent may be recovered: Wilson v. Smith, 3 How. U. S. 763. Or money paid to an agent, if before it be paid to the principal, notice be served upon the agent that it will be reclaimed: Wood v. United States, Dev. 55.

23. Sufficient Allegations.-A complaint which alleges that the defend

ant was employed as plaintiff's agent for the purchase of stock, that in settlement between the seller and defendant, the former was found to be indebted to the latter, as the plaintiff's agent, in a certain sum, which he paid, but which the defendant refuses to pay to the plaintiff, states a sufficient cause of action: Bates v. Cobb, 5 Bosw. 29. A complaint against an agent for money received, who pretends to have been robbed thereof, may properly allege simply that the defendant being in possession of the plaintiff's property as his agent, converted the same to his own use: Frost v. McCarger, 29 Barb. 617. That defendant, as such agent, had collected from divers persons divers sums, either stating the aggregate or asking an accounting, is sufficient: West v. Brewster, 1 Duer, 647.

24. Who may Recover.-Where an agent or servant applies money of his employer, in his hands, to discharge the debt of a third person, the employer may recover it from the payee as money received to his use, if the payee received it with a knowledge of the facts: Amidon v. Wheeler, 3 Hill, 137.

25. When Action Lies.-An action for money had and received is proper, when a recovery is sought of money which defendant has received and refused to pay on demand to the plaintiff, who is entitled to it: Stanwood v. Sage, 22 Cal. 517.

was the agent of the plaintiff in [stating generally the employment], that he collected and received as such agent, from divers persons, certain sums of money, for and on account of the plaintiff, amounting in the whole to the sum of ..... ...dollars; no part of which has been paid by defendant to the plaintiff.

26. Notes Received. - Under a complaint in an action against an agent for money had and received, the plaintiff may recover where it appears that the defendant received notes which were good and collectible, and by his transactions he released the debtor and deprived his principal of all remedy except against himself: 6 Cow. 183, note; 3 Mass. 403; 11 John. 464; Allen v. Brown, 51 Barb. 86.

No. 142.

iv. For Money Received by Defendant, through Mistake. [TITLE.]

The plaintiff complains, and alleges:

I. That on the .... day of ... 187., at ....., the defendant presented to the plaintiff an account of mutual dealings theretofore had between them, which said account set forth a balance due from the plaintiff to the defendant. of the sum of ..... .... dollars.

II. That the plaintiff, believing said account to be correctly stated, then paid said sum of .. dollars to the defendant.

III. That in fact said account was not correctly stated, but that it overcharged the plaintiff with the sum of ............ dollars by an error in adding up the items thereof [or otherwise, specifying the error].

IV. That defendant has not paid the said sum of ..... dollars to the plaintiff, though requested so to do.

[Demand of Judgment.]

27. Demand.—Where money is paid by mistake, notice of the mistake, and demand of repayment before suit to recover it back, are not necessary. The party receiving the money under such circumstances is not a bailee or trustee. But such a demand may affect the question of interest: Utica Bank v. Van Gieson, 18 Johns. 485.

28. Mistake of Law.-Money paid by mistake of law cannot be recov ered back, there being no difference between money paid in ignorance of law and money paid by mistake of law: Schlesinger v. United States, 1 Nott. & H. 16: Elliot v. Swartwout, 10 Pet. 137.

29. When the Action Lies.-That money paid under a mutual mistake of facts may be recovered back, see Burr v. Veeder, 3 Wend. 412; Wheadon v. Olds, 20 Id. 174; Canal Bank v. Bank of Albany, 1 Hill, 287; Bank of Commerce v. Union Bank, 3 N. Y. 230; Duncan v. Berlin, 60 N. Y. 151; Manchester v. Burns, 45 N. H. 482.

he delivered to defendant [fifty barrels of flour], for sale upon commission.

II. That on the .... day of

187. [or on some

other day unknown to the plaintiff, before the

.. day of

....

for

187.], the defendant sold the said merchandise
dollars.

[III. That the commissions and expenses of the defendant thereon amount to ...

.. dollars.]

IV. That on the day of

....

187., the plaint- • iff demanded from the defendant the proceeds of the said merchandise.

V. That he has not paid the same.

[Demand of Judgment.]

30. Demand.-In an action against an agent for not accounting, etc., a request to account and pay over must be alleged and proved: Bushnell v. McCauley, 7 Cal. 421. The distinction, in respect to the necessity of proving a demand, between an action for not accounting, and an action for not paying over, discussed in Cooley v. Belts, 24 Wend. 203.

31. Demand should be Alleged.-An express demand should be alleged: Baird v. Walker, 12 Barb. 298; Halden v. Crafts, 4 E. D. Smith, 490. In an action against a factor for the proceeds of goods sold, of which he apprised his principal, a demand must be shown, unless he had instructions to remit, or the usage of his business made it his duty to do so without instructions: Cooley v. Betts, 24 Wend. 203; Ferris v. Paris, 10 Johns. 285; Halden v. Crafts, 4 E. D. Smith, 490.

32. Election of Remedy.-Under a complaint which contained a count for indebtedness from the defendant to the plaintiff, for property sold and delivered, and money received to the plaintiff's use, the plaintiff may prove a tortious taking by the defendant, and the sale of the property by him, and the receipt of the money, and waiver of the tort, and sue for the money had and received, or for the value of the property, as for goods sold and delivered. If the wrong-doer sells the property, and receives the money therefor, an action lies at the suit of the owner for money had and received, and such an action is a waiver of the tort: 1 Hill, 234, 240, note a.; 2 Seld. 112; 27 Barb. 652. In such an action, it is not necessary to state how, or under what circumstances, the money came to the defendant's hands. The receipt of the money to the plaintiff's use is the fact which constitutes the cause of action: 12 How. Pr. 326; 3 Seld. 476; Harpending v. Shoemaker, 37 Barb. 270; compare Byxbie v. Wood, 24 N. Y. 607.

33. Form of Action.-This form is drawn on the presumption that the factor has not accounted. If he has accounted, but not paid, the better form is on an "account stated." If he has not accounted, it is improbable that the plaintiff will know the precise amount of his expenses, and it is not necessary to credit him with them in the complaint: N. Y. Code Comm'rs, note. The third allegation is not essential, but may prevent any answer setting up his claim.

34. Goods Sent on Commission.-If the complaint in an action for the price of goods sent on commission, alleges that defendant sold, but did not account to plaintiff, the plaintiff must prove that a sale actually took place: Elbourne v. Upjohn, 1 C. & P. 572.