756
Opinion of the Court
The Government does not contend that WBEC stole the money at issue in this case or otherwise took money from the Government unlawfully. WBEC did not. Nor does the Government contend that California and WBEC had a relationship that would make California liable for WBEC's actions. They did not. In fact, California and WBEC had an adverse relationship: that of creditor and debtor. California's demand that WBEC pay what California believed to be a lawful debt does not make California legally responsible for the Government's indemnification of WBEC. In these circumstances, we do not imply a contract in law between California and the Government. Without an implied contract, an action for money had and received will not lie against the State.
Although the Government cannot proceed in an action for money had and received, our discussion of indemnification suggests the Government may not be without recourse: Because it indemnified the contractor, the Government has a right to be subrogated to the contractor's claims against the State. See 10 W. Jaeger, Williston on Contracts § 1265 (3d ed. 1967); Brief for Respondents 13 (conceding the same). When proceeding by subrogation, the subrogee "stands in the place of one whose claim he has paid." United States v. Munsey Trust Co., 332 U. S. 234, 242 (1947). Here WBEC's rights have lapsed and its claims are barred. Under traditional subrogation principles then, the claims of the United States also would be barred. The subrogee, who has all the rights of the subrogor, usually "cannot acquire by subrogation what another whose rights he claims did not have." Ibid. Although WBEC filed actions in state court within 90 days of the Board of Equalization's administrative decisions, WBEC later dismissed those cases without prejudice. A dismissal without prejudice terminates the action and "concludes the rights of the parties in that particular action." Gagnon Co. v. Nevada Desert Inn, 45 Cal. 2d 448, 455, 289 P. 2d 466, 472 (1955). A subrogee could have proceeded only
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