Chapter 3-6 Money Had and Received

• Jurisdiction: United States

3-6 Money Had and Received

3-6:1 Overview

Money had and received is a cause of action rooted in assumpsit and unjust enrichment. The only inquiry to be made is whether the defendant has money which in equity belongs to the plaintiff.

3-6:1.1 Related Causes of Action

Assumpsit, Quantum Meruit, Unjust Enrichment, Breach of Contract, Trover, Conversion

MUST READ CASES

Best Buy Co. v. Barrera, 248 S.W.3d 160 (Tex. 2007)

H.E.B., L.L.C. v. Ardinger, 369 S.W.3d 496 (Tex. App.—Fort Worth 2012)

3-6:2 Elements

(1) The defendant has money or a substitute for money.²²⁸

(1)(a) Money.²²⁹
(1)(b) An equivalent of money

• Equivalents for money include:

• Cashier's checks;²³⁰
• Other financial instruments;²³¹ and
• Property converted into money before trial.²³²

(2) Which in equity, justice and law belongs to the plaintiff.²³³

• To recover, the plaintiff need not prove the defendant acted wrongfully. Rather, the plaintiff merely must establish the equities balance in his favor.²³⁴
• Where the plaintiff and defendant are both innocent, the one who could have avoided the loss must bear the loss.²³⁵

3-6:3 Damages and Remedies

3-6:3.1 Restitution

Restitution is an available remedy.²³⁶

3-6:3.2 Attorney's Fees

Attorney's fees may be recoverable under Chapter 38 of the Texas Civil Practice and Remedies Code.²³⁷

It is likely that attorney's fees, to be recoverable, must be recoverable under Section 38.001(1).²³⁸

3-6:4 Defenses

3-6:4.1 Statute of Limitations

The limitations period may be two years²³⁹ or four years.²⁴⁰ The cause of action accrues when the money is paid to the defendant.²⁴¹ The discovery rule may apply.²⁴²

3-6:4.2 Other Defenses, Generally

Because of the equitable nature of the cause of action, equitable defenses need not be pleaded to be asserted.²⁴³

Rather, a defendant may put on proof of any fact or defense which might rebalance the equities.²⁴⁴

Such equitable defenses could include:

• Unclean hands;²⁴⁵
• Voluntary payment;²⁴⁶
• Material change of position;²⁴⁷ and
• Any facts which tend to establish the money or its equivalent belongs to the defendant.²⁴⁸

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Notes:

^[228] Staats v. Miller, 243 S.W.2d 686, 687 (1951).

^[229] H.E.B., L.L.C. v. Ardinger, 369 S.W.3d 496, 507 (Tex. App.—Fort Worth 2012); First Tech Fed. Credit Union v. Fisher, No. 14-18-00140-CV, 2020 Tex. App. LEXIS 1424, at *10 (Tex. App.—Houston [14th Dist.] Feb. 20, 2020, no pet. h.).

^[230] First Nat'l Bank of Mineola, Tex. v. Farmers & Merchs. State Bank of Athens, Tex., 417 S.W.2d 317, 324 (Tex. Civ. App.—Tyler 1967, writ ref'd n.r.e.).

^[231] First Nat'l Bank of Mineola, Tex. v. Farmers & Merch. State Bank of Athens, Tex., 417...