The action for money had and received is equitable in its nature, and maintainable whomever the plaintiff is ex argus et bono entitled to the money claimed (Chapman v. Forbes, 123 N. Y. 532), yet it is *477founded on the theory that the defendant has received money which of right belongs to the plaintiff.
There is no evidence that the defendants ever received any moneys to or for the use of the plaintiff, to which these principles can be applied.
I gather from the proofs, that the defendants made a building loan contract with one Hamilton, by which they were to advance him money as certain buildings in course of erection progressed, and the orders drawn by Hamilton, on the defendants, were accepted by them, payable when the eleventh payment became due, under the loan contract.
The complaint being for money had and received, omitted all allegations touching the progress of the buildings, or that the eleventh advance had become due, so that the defendants could not take issue in respect to these material matters.
To recover, the plaintiff was obliged to prove facts not alleged, and while this may be done in the action where a defendant receives money which equitably belongs to a plaintiff, I do not think the rule can be extended to a case where a defendant never received money to and for the use of another, but merely agreed, as in this case, to advance certain money of his own.
The defendants objected all the way through the case, to the proofs offered under the complaint, insisting that they must conform thereto, and that as the allegations did not conform to the proofs offered, they were not admissible.
The objection was in each instance overruled, as the action was not technically one for money had and received.
I think the exceptions to the admission of the evidence, well taken, and that the action should have been on the transaction alleging it, in the manner in which it was required to be proved.
This conforms to the rule laid down in Riggs v. Chapin, 27 N. Y. St. Repr. 268, as well as in the recent case of Shrimpton v. Dworsky, decided by the Common Pleas, General Term. N. Y. Law Journal, December 12, 1892.*
*478For these reasons, the judgment appealed from should be reversed, and a new trial ordered, with costs to the appellants, to abide the event.
Judgment affirmed.
49 N. Y. St. Repr. 139.