Notwithstanding the able and ingenious argument of defendant’s counsel, we fail to see any abuse of discretion on the part of the circuit court in allowing the amendment to the complaint. This amendment was, doubtless, asked for in order to obviate any objection of variance which might be taken if the evidence on another trial should be the- same as on the former one. The court has ample power to allow a pleading to be amended in furtherance of justice by inserting allegations material to the case, when the amendment does not change substantially the claim or defense (R. S., sec. 2830); and this power has always been exercised with much liberality, in conformity with the spirit of the statute. Now, one objection taken to the amendment is, that it entirely changes the cause of action from one in tort to one in contract. "We do not so understand the pleadings.
Mr. Justice Orton, in delivering the opinion of the court on the last appeal, after alluding to the complaint which was before the court on the first appeal, says: “The complaint, as amended and now before this court, charges, in effect, that the defendant received from the plaintiff, at Racine, a bill' or account for the sum of $800, in favor of the plaintiff and against Downs, for the wagons sold to Downs by the plaintiff, and shipped by the Chicago & Milwaukee Railroad Company to Downs, in the care of the agent of the defendant at Marshalltown, Iowa, and undertook to collect of Downs said bill, *229upon tbe delivery of tbe wagons to him, and to transport tbe said sum, when collected, from Marshalltown to Racine, and deliver tbe same to tbe plaintiff.” The liability of the defendant is here distinctly placed on tbe ground that, as tbe consignee of tbe property and factor of tbe plaintiff at Mar-shalltown, it undertook to collect the proceeds of tbe sale from Downs and deliver tbe same to tbe plaintiff at Racine, which engagement it failed to perform. Tbe liability is one arising upon contract, not in tort. "Whether or not tbe complaint before tbe court on tbe first appeal -was likewise one in contract, we need not stop to determine, because that is not tbe pleading which was last amended. Tbe last amended complaint is plainly for money had and received by tbe defendant for tbe use and benefit of tbe plaintiff, and, it is unnecessary to say, rests in contract, express or implied. Tbe responsibility of tbe defendant is placed upon a little different ground; that is all.
Again, it is said that the complaint as last amended states no cause of action, for the reason that it does not appear therefrom that the money bad and received by the defendant was the property of the plaintiff. If it be true that the complaint as amended is bad, it is not very obvious bow the defendant could have been prejudiced by the amendment. But that there may be no misapprehension as to our views upon this point, we will add that we think the only fair inference from the facts stated is, that the money which the defendant received belonged to and was the property of the plaintiff. The learned counsel says that the money belonged to Downs when be delivered it to the defendant to be transported to the plaintiff at Racine, and that the presumption is that the title remained in him. But it is more consistent with the allegations to assume that the defendant received the money as the agent of the plaintiff, and that the money was really at the risk of the plaintiff while in transit. An action for" money bad and received is maintainable whenever the defendant receives money *230which, in equity and good conscience, he ought to pay to the plaintiff. Lockwood v. Kelsea, 41 N. H., 185. In the language of Lord Ellenborough, C. J., in Hudson v. Robinson, 4 M. & Sel., 475-478, “ an action for money had and received is maintainable whenever the money of one man has, without consideration, got into the pocket of another.” Here, according to the complaint, money which belongs to the plaintiff has come to the possession of the defendant for plaintiff’s use and benefit. Under such circumstances an obligation is implied in law, on the part of the defendant, to pay it over to the rightful owner. Says Mr. Chitty: The form of the count in this kind of action “is extremely simple; it is merely stating that the defendant is indebted to the plaintiff in a certain sum for money had and received by the defendant to and for the use of the plaintiff.” 1 Chit. Plead. (16th Am. ed.), 362; Grannis v. Hooker, 29 Wis., 65.
It seems to us there is no good ground for saying that the plaintiff has been guilty of such laches in the prosecution of this claim as. to make it an abuse of discretion on the part of the' court below to allow the amendment. It is possible, as argued by plaintiff’s counsel, that it would have been entirely proper .for the court, on the former trial, to have allowed such an amendment, even after verdict, so as to make the allegata and probata correspond.
It is objected that the amendment was allowed without requiring the plaintiff to pay the costs of the former appeal. But this was a matter resting in the discretion of the court below. Felt v. Amidon, 48 Wis., 66. The, same answer must be given to the objection taken to that part of the order which relieved the plaintiff from the stipulation which waived the record evidence in regard to the judgments rendered by the justices in the garnishee actions. If the dockets of the justices who rendered these judgments were actually deposited in court, there was no hardship in requiring the defendant to resort to them to prove its defense.
*231We think the order of the circuit court was correct and must be affirmed.
By the Court.— Order affirmed.
LyoN, J., took no part.