Money had and received, or "the common count of general assumpsit," is an action at law but is governed by equitable principles. Albino v. Albino, 279 Or. 537, 553, 568 P.2d 1344 (1977). Accord Rosenblum v. First State Bank of Elgin, 283 Or. 123, 131 n 1, 581 P.2d 515 (1978); Golden v. Golden, 273 Or. 506, 511 n 8, 541 P.2d 1397 (1975); Smith v. Rubel, 140 Or. 422, 426, 13 P.2d 1078 (1932). "The action is liberal in form and greatly favored by the courts."

"Plaintiffs bring this action for money had and received. The leading case in Oregon on this type of action is Smith v. Rubel, 140 Or. 422 [ 13 P.2d 1078] (1932). In this case, the Court notes the applicable law to be as follows:

The test which determines whether a recovery may be had is whether the defendant in equity and good conscience is entitled to retain the money to which the plaintiff asserts claim. 40 Am. Jur., Payment § 187, p. 844; Scott v. Ford, 45 Or. 531, 78 P. 742, 80 P. 899, 68 L.R.A. 469; Smith v. Rubel, 140 Or. 422, 13 P.2d 1078, 87 A.L.R. 644; Restatement, Restitution, §§ 15 to 26, incl. It is also the general rule that the failure of the payor to exercise ordinary care to avoid mistake will not as a matter of law defeat his recovery.

97 A. at 90. Also factually similar is Smith v. Rubel (1932) 140 Or. 422, 13 P.2d 1078. A broker purported to sell shares of a company's Class A stock when the customer owned Class B stock in that company. A transaction for sale of Class A stock was completed, and the proceeds were forwarded to the customer in an amount twice the value of the Class B stock.

We summarized those principles in General Motors Corp v Enterprise Heat Power Co, 350 Mich. 176, 181-182; 86 N.W.2d 257 (1957): The general rule relative to the right to recover money paid through a mistake of fact is well stated in Smith v Rubel, 140 Or. 422, 426, 427 ( 13 P.2d 1078, 87 ALR 644) [1932], where it was said: "As a general rule, a payment made under a mistake of fact which induces the belief that the other party is entitled to receive the payment when, in fact, the sum is neither legally nor morally due to him, may be recovered, provided the payment has not caused such a change in the position of the payee that it would be unjust to require the refund.

In coming to our conclusion in this cause we have in mind that there was no fraud involved and that both parties had ample opportunity to examine exhibit 13 prior to the making and acceptance of the overpayment. The general rule relative to the right to recover money paid through a mistake of fact is well stated in Smith v. Rubel, 140 Or. 422, 426, 427 ( 13 P.2d 1078, 87 ALR 644), where it was said: "As a general rule, a payment made under a mistake of fact which induces the belief that the other party is entitled to receive the payment when, in fact, the sum is neither legally nor morally due to him, may be recovered, provided the payment has not caused such a change in the position of the payee that it would be unjust to require the refund.

In the examination of the facts challenged by the exceptions to the allowance of the claim against the estate of the decedent, the court is limited to the specifications set forth in the objections interposed: § 11-705, Oregon Code 1930; Roach's Estate, 50 Or. 179, 190 ( 92 P. 118); Irvine v. Beck, supra. Taking up the question of whether there was a contract, express or implied, for repayment of the amount paid by the bank to Joseph Anderson, deceased, we are confronted with the proposition that the law implies a promise to refund whenever one person receives money of another which, in equity and good conscience, he is not entitled to retain: Smith v. Rubel, 140 Or. 422, 426 ( 13 P.2d 1078, 87 A.L.R. 644). It is plain and uncontroverted that Joseph Anderson obtained the payment of the sum of $2,500 upon different dates by means of false representations and deceit and that the bank paid the money in ignorance of the facts, of which they had no means of ascertaining the truth.

Id. quoting Smith v. Rubel, 140 Or. 422, 13 P.2d 1078 (1932). Therefore, “[m]oney paid to another under the mistaken supposition of the existence of a specific fact which would entitle the other to the money, which money would not have been paid had it been known to the payer that the fact did not exist, may be recovered, provided the payment does not result in such a change in the position of the payee that it would be unjust to require a refund. ”

After repeated assurances from an expert in the field as to the value of stock, a reasonable person would not be negligent in relying on that valuation. Plaintiff argues that, under Smith v. Rubel, 140 Or. 422, 13 P.2d 1078 (1932), defendants may not retain the money paid to them. Although Smith involved a stock transaction in which the broker's assignees sought restitution, it is otherwise dissimilar.

It should be added that the good faith of the payee in no way affects the applicability of the above rules. ( Smith v. Rubel, 140 Ore. 422 [ 13 P.2d 1078, 87 A.L.R. 644]; Grand Lodge, A.O.U.W. of Minnesota v. Towne, 136 Minn. 72 [161 N.W. 403, L.R.A. 1917E 344].) [11] The teachers, as to this and all other cases of error, urge that the ratings having been once given, although based on error, are final, and, that in any event, the board is estopped from challenging, or that the board has ratified, the ratings.