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Merkison v. State2/17/2000
ctions in certain circumstances for violations of the provisions of the Act. Wyo. Stat. Ann. ' 35-7-1049 (LEXIS 1999). Included among the things subject to forfeiture are:
Any property or other thing of pecuniary value furnished in exchange for a controlled substance in violation of this act including any proceeds, assets or other property of any kind traceable to the exchange and any money, securities or other negotiable instruments used to facilitate a violation of this act. Property used or furnished without the consent or knowledge of the owner is not forfeitable under this section to the extent of his interest. Wyo. Stat. Ann. ' 35-7-1049(a)(viii) (LEXIS 1999).
The clear and unambiguous language of that statutory provision indicates that the buy money expended by DCI was a thing Aof pecuniary value furnished in exchange for a controlled substance in violation of this act. Therefore, DCI had a civil cause of action to recover the buy money under the Controlled Substances Act, and, accordingly, it had suffered Apecuniary damage entitling it to restitution under the facts of this case.
In addition, it is possible that even absent the existence of a specific statutory right for a civil recovery of its pecuniary damages, DCI may also have a common law right of action grounded in the concept of unjust enrichment.
We have long recognized that an action for money had and received Ais an equitable action, and no recovery can be had except upon proof that the defendant has received money of the plaintiff which, in equity and good conscience, it ought not to retain. That is the basis and foundation of the action. Carton v. Board of County Commissioners of Uinta County, 10 Wyo. 416, 435, 69 P.2d 1013 (1902). We have also recognized that an element of fraud or tortious conduct on the part of the defendant is not necessary in an action for Aunjust enrichment.
The words Aunjust enrichment concisely state the necessary elements of an equitable action to recover money, property, etc., which Agood conscience demands should be set over to the appellee by appellants pursuant to an implied contract between them. Landeis v. Nelson, 808 P.2d 216, 217-18 (Wyo. 1991).
Clearly, Merkison received money from DCI which, in equity and good conscience, he ought not to retain based upon his inability to furnish lawful consideration for the money he received.
CONCLUSION
DCI was a Avictim which had suffered Apecuniary damage as a result of Merkiso's criminal activities, and, therefore, the district court did not err in awarding restitution in the amount of the buy money expended by DCI.
Affirmed.
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