In almost every litigation webinar we’ve done, and in many of our past posts discussing breach of contract (the general breakdown of this claim is here), we’ve stressed the importance of memorializing agreements in writing to save yourself from potential or protracted litigation down the line. Unfortunately though, we still get quite a few prospective clients who just don’t have this principle down (whether because of prior industry norms or otherwise) and find themselves in a bind. In California, that’s where “common counts” might help. The common count is a general pleading which seeks recovery of money without specifying the nature of the claim. In today’s post, we’re going to discuss the four common counts that might save your breach of contract claim.
Money Had and Received
The common count of “money had and received” may be brought “wherever one person has received money which belongs to another, and which … in justice and right, should be returned. … The plaintiff’s right to recover is governed by principles of equity, although the action is one at law.” Mains v. City Title Ins. Co. (1949) 34 Cal.2d 580, 586. As provided by CACI Jury Instruction No. 370, the plaintiff