Harwell v. Reiniger

KNIGHT, J.

The defendants, as owners of a tract of land near Los Angeles which they had subdivided into lots for the purpose of sale, accepted from plaintiff a deposit of $903 on the sale of a lot which they had previously contracted to sell to another; and upon their refusal to return the deposit plaintiff brought this action to recover the same and was awarded judgment, from which the defendants appeal. The trial took place before the court sitting without a jury and the main ground urged for reversal is that the findings when “taken in connection with the pleadings” do not support the judgment.

The complaint contained three causes of action, separately stated. The first and second were for rescission of contract on the grounds of failure of consideration and fraud, and the third was for money had and received. In its decision the trial court did not pretend to find separately on each cause of action, but followed chronologically the negotiations between the parties as they occurred, and then from the facts found drew the legal conclusion that plaintiff was entitled to the return of the deposit.

The objections defendants make against the sufficiency of the findings relate to matters pleaded in the first and second causes of action. It is well settled, however, that an action for money had and received will lie at the instance of a party not

in pari delicto

to recover money

[487]

paid under a void executory contract for the sale of real estate. (17 Cal. Jur. 613;

Smith

v.

Bach,

183 Cal. 259 [191 Pac. 14];

Smith

v.

Bach,

54 Cal. App. 236 [201 Pac. 611];

Smith

v.

Bach,