Money Had and Received and the Common Counts in California: Getting a Payment Back

Last updated: November 2026. Reviewed by Pavel Kolmogorov, California business litigation attorney (State Bar No. 321018).

Money had and received is a California common count: a short-form claim that the defendant holds a specific sum that belongs to you and should, in fairness, return it. A business that wired a deposit to a supplier that never shipped can plead it with no written contract, usually next to breach of contract. The Commercial Code separately lets a buyer recover the price paid when a seller fails to deliver. Kolmogorov Law, P.C. handles these claims in Orange County, Los Angeles, and across California.

Call (909) 235-6116 or contact us online to discuss a deposit, overpayment, or misdirected payment your business wants back.

What the common counts are

The common counts are old pleading shortcuts that California still allows. Instead of narrating every fact, the plaintiff alleges that the defendant became indebted in a stated sum for a recognized reason and has not paid. The familiar ones are money had and received, money lent, goods sold and delivered, and work and labor performed. The open book account and the account stated belong to the same family and have their own pages.

A common count is not a separate legal theory. It is a simplified form of pleading used to allege various kinds of monetary debt, including a duty to make restitution. (Avidor v. Sutter's Place, Inc. (2013) 212 Cal.App.4th 1439, 1454.) Juries are instructed on money had and received under CACI No. 370, and on goods and services rendered under CACI No. 371.

When money had and received applies

The claim is stated when the defendant is indebted to the plaintiff in a certain sum for money the defendant received for the plaintiff's use. It lies wherever one person has received money that belongs to another and that, in equity and good conscience, should be paid over. (Gutierrez v. Girardi (2011) 194 Cal.App.4th 925, 937.)

Two features matter in practice. The amount must be definite. And the claim is about money the defendant actually received, not about profits you expected to earn.

The situations I see most often are ordinary. Accounts payable pays the same invoice twice. A customer overpays because a credit was never applied. A buyer funds a deposit and the seller never performs. A payment meant for one company lands with another that has no right to it. None of these requires a signed agreement, because the claim rests on who is holding the money.

The deposit to a supplier that never shipped

Take the question at the top of this page. Your company agreed by phone and email to buy inventory, wired a deposit, and received nothing.

For a sale of goods, the Commercial Code gives a direct answer. Where the seller fails to make delivery, the buyer may cancel and recover so much of the price as has been paid, and may also seek damages for the cost of substitute goods or for nondelivery. (Com. Code, § 2711, subd. (1).) The missing signature is usually not fatal either. A contract for goods of $500 or more generally needs a signed record, but an unsigned one is still enforceable as to goods for which payment has been made and accepted. (Com. Code, § 2201, subds. (1), (3)(c).)

So the complaint typically has two counts: breach of the sales contract and money had and received for the deposit. If the supplier disputes that any contract existed, the second count still asks a simple question. Why is it keeping the money? Our page on sale of goods disputes covers the buyer's other remedies.

The limit: the count rises or falls with the underlying claim

A common count does not rescue a claim that fails on its merits. California appellate courts have held that a common count seeking the same recovery, on the same facts, as a specific cause of action stands or falls with that cause of action. If the contract claim fails because the deposit was earned, the common count for the same deposit usually fails too.

It also does not expand what you can recover. Lost profits and other consequential losses belong in the contract claim. Where the dispute is about the value of services performed without an agreed price, the right vehicle is quantum meruit, which we cover separately.

Deadlines depend on what is underneath

No single limitations period governs every common count. Courts look at the right being enforced.

An obligation not founded on a writing: two years. (Code Civ. Proc., § 339, subd. 1.)
An obligation founded on a written instrument: four years. (Code Civ. Proc., § 337, subd. (a).)
A claim for relief on the ground of fraud or mistake: three years, running from when the facts were or reasonably should have been discovered. (Code Civ. Proc., § 338, subd. (d).)
A contract for the sale of goods: four years from accrual, unless the contract shortened the period to as little as one year. (Com. Code, § 2725, subd. (1).)

Which one applies to a given payment is often contested, so I treat the shortest plausible period as the deadline. A deposit paid on a handshake deal for services may have only two years.

If your business paid the wrong party or overpaid

Speed helps more than theory. Send a written demand that identifies the payment by date, amount, and reference number, and ask for its return by a specific day. Preserve the remittance records and the communications that explain why the money was sent.

If the payment was redirected by a spoofed email or altered wire instructions, the bank-side steps are urgent and different. See our page on wire transfer fraud and business email compromise. Where the recipient knowingly kept a specific, identifiable sum that belonged to you, a conversion claim may be added, which can open the door to remedies a common count does not carry. A bare contractual right to be paid is not enough for that claim.

If your business is the one holding the money

Being sued on a common count does not mean you owe the money. The defenses are mostly factual. The deposit was earned by work already done. The contract made it nonrefundable. You hold an offset for unpaid invoices. The payment was not a mistake at all.

Because the pleading is so brief, demand the details early. Then test whether the count simply repeats a contract claim that has its own weaknesses, since the two usually succeed or fail together.

What to bring to the first meeting

Proof of the payment: wire confirmation, check image, or bank statement.
The emails, texts, quotes, or purchase orders that led to it.
Any invoice, receipt, or acknowledgment from the recipient.
Your demand for return and any response.
Notes on what, if anything, the recipient delivered or performed.

Frequently asked questions

We wired a deposit to a supplier that never shipped and there was no written contract. What claim do we have?

In California you would normally plead breach of the sales agreement and a common count for money had and received. The Commercial Code lets a buyer recover the price paid when the seller fails to deliver, and an unsigned contract for goods is enforceable to the extent payment was made and accepted. The emails and the wire record carry the proof.

What is money had and received in California?

It is a common count alleging that the defendant received a definite sum that belongs to the plaintiff and should in fairness be returned. California courts apply it to overpayments, duplicate payments, unearned deposits, and funds received by the wrong party. It does not require a signed contract, but the amount must be certain.

What are the common counts in California?

They are short-form pleadings for money debts: money had and received, money lent, goods sold and delivered, work and labor performed, open book account, and account stated. A common count is a way of pleading, not an independent theory, so California courts hold that it generally succeeds or fails with the specific claim it accompanies.

How long do I have to sue to get a mistaken payment back in California?

It depends on the basis of the claim. California allows two years for obligations not founded on a writing and four years for those founded on a written instrument. Relief on the ground of fraud or mistake has three years, measured from when the facts were or should have been discovered. Because the categories overlap, plan around the shortest period that could apply.

Our accounts payable team paid a vendor's invoice twice and the vendor will not refund it. Do we have to prove a contract to recover the duplicate?

No. A duplicate payment is a classic use of money had and received in California. You show that the vendor received a definite sum it was not owed and has kept it. The vendor may answer that it applied the money to other open invoices, so gather the statements showing what was actually due.

Talk to a California breach of contract attorney

If your business needs a payment returned, or has been sued on a common count, call (909) 235-6116 or contact us online. Kolmogorov Law, P.C. is located at 327 Magnet, Irvine, CA 92618, and represents businesses in Orange County, Los Angeles, and throughout California.

This page provides general information about California law and is not legal advice. Outcomes depend on the payment records, the facts, and the court.