Sharp v. McCargar

Defendants’ principal assignment of error is that the plaintiff having brought this action on a common count for money had and received, there is a fatal departure in that the proof discloses a written contract executory in its terms. Plaintiff in his complaint alleges:

“That on or about the 29th day of March, 1919, the defendants had and received of plaintiff the sum of $5,000, which they promised and agreed to repay to plaintiff upon demand.

“That plaintiff on or about the 21st day of February, 1921, demanded of defendants the return of said money, which they declined, refused, and neglected…