B. Elements

• Library: Elements of Civil Causes of Action (SCBar) (2021 Ed.)

B. Elements

The simplest statement of the action for money had and received is found in the early case of Marvin v. M'Rae³⁶ where the court said that if a party has money in his or her hand that belongs to another, that other party may sue the first in an action for money had and received. Subsequent decisions expand on that statement a bit to say that the action may be maintained whenever one has money in his or her hands belonging to another that, in equity and good conscience, he or she ought to pay over to that other.³⁷ Thus, under the traditional formulation, the plaintiff must show: (1) the defendant holds money (2) that, in equity and good conscience, belongs to plaintiff. These are the elements explicated below. However, as previously discussed, the plaintiff may instead now need to meet the Scudder May quantum meruit test.

Privity between the parties is not required,³⁸ and, although the money at issue may have been wrongfully obtained, wrongfulness is not at issue and not an element.³⁹

It is usually said that no demand is required,⁴⁰ and therefore, a prior demand would not be an element of the action. There does, however, seem to be some authority in South Carolina requiring a demand.⁴¹ On the surface, a requirement that the plaintiff make a demand on the defendant as a condition of bringing the action makes sense. If the plaintiff can recover the money at issue by simply making a demand on the defendant, the court's time should not be taken up with the action. On the other hand, the complaint itself constitutes a demand and if the defendant answers, denying liability, little would seem to be gained, either for the court or the parties, by dismissing the complaint for failure to state a cause of action and requiring the plaintiff to make a formal demand that will inevitably be refused. Thus, this statement of elements does not include a demand. Nonetheless, a formal written demand is easy enough to make, and the plaintiff is well advised to make one and to briefly mention it in the complaint.

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Notes:

^[36] Marvin v. M'Rae, 24 Rice 171, 176 (1839). See also Drake v. Whaley, 35 S.C. 187, 14 S.E. 397 (S.C. 1892) (when one person holds money that really belongs to another cause of action is in assumpit for money had and received).

^[37] McDonald's Corp. v. Moore, 237 F. Supp. 874 (D.S.C. 1965). See also Pilot Life Ins. Co. v. Cudd, 208 S.C. 6, 36 S.E.2d 860 (S.C. 1945) (money paid to another under influence of mistake of fact that would not...