Woodbury v. Jones
69 Mass. 261
Mass.
1855
Check Treatment
Bigelow, J.

The plaintiff’s declaration, in its substantive averments, is for money had and received to the plaintiff’s use, and could well be supported by the ordinary proof necessary to maintain such action. Indeed, the allegation with which the plaintiff commences is in the precise form prescribed by the practice act for money had and received. This is the only direct averment. All the rest of the declaration is incidental to this, and is descriptive merely of the means or source through wffiich the money so received was obtained. Such a statement was surplusage, because it did not embrace any substantive fact necessary to constitute the cause of action. Every thing essential was comprehended in the simple averment of money had and received by the defendant to the plaintiff’s use. The mode *263of its receipt was wholly immaterial, and the statement of it in the declaration would have warranted a motion on the part of the defendant to strike it out, under § 5 of the St. of 1852, c. 312. But being in, the plaintiff" cannot use it to change the real substance of his action, in order to meet a new aspect of his case on the evidence as disclosed at the trial; nor to obtain an advantage, by treating the omission of the defendant to deny such immaterial facts as an admission upon which to charge him with a claim essentially different in its nature from that for which the suit was originally brought. The plaintiff, in' order to maintain his action, was therefore bound to prove that the defendant had received money which in equity and good conscience he ought to have paid to the plaintiff. The evidence offered at the trial entirely failed to show this. The ruling was therefore correct. Exceptions overruled.