
    Emil Dieckerhoff et al., Respondents, v. Otto Alder et al., Appellants.
    (New York Common Pleas
    General Term,
    May, 1895.)
    An action to recover moneys claimed to have been paid by mistake, and which it is alleged that defendants have unlawfully retained to their own use because the plaintiff was not indebted to them, is one for money had and received, notwithstanding the allegation of mistake
    Where the complaint in an action to recover money paid by mistake, but which it appears the defendants were allowed by agreement to keep and apply upon any future indebtedness, alienes that plaintiff had at no time been indebted to the defendants in any sum whatever which had not otherwise been paid before the commencement of the action, the plaintiff is not entitled to recover on the sole ground that such sum was not allowed on a subsequent indebtedness which he was compelled to pay.
    Want of jurisdiction by reason of the non-existence of jurisdictional facts is waived by the appearance of the defendant, unless it is pleaded in defense.
    Appeal by defendants from a judgment of this court in favor of the plaintiffs, entered upon a verdict of a jury for $1,359.32; and from an order denying a motion for a new trial.
    
      Hatch ds Wickes, for appellants.
    
      George Ccvrleton Comstock, for respondents.
   Daly, Oh. J.

This was an action to recover back money paid to defendants under the following circumstances, as set out in the complaint: Plaintiffs remitted to defendants on ¡¡■September 28,1892, fes. 5208.55 in full payment of an invoice of goods, and again on October 4, 1892, by mistake remitted the same amount in payment for the same goods. The complaint further alleged that the defendants retained the last-mentioned sum unlawfully to their own use; that it has been demanded from them, and that they have refused to pay the same, although plaintiffs have at no time been indebted in any sum which has not otherwise been paid by plaintiffs to defendants prior to the commencement of this action and prior to the aforesaid demand and refusal.

The answer denies all the material allegations except the first payment, and sets up as a defense that the parties had an open mutual running account, and that any payments made at any time by plaintiffs were made upon said account, and are applicable thereto when adjusted between the parties; that the payments were not made through any mistake of fact, but were made with full knowledge and voluntarily, and that the account is to be adjusted in an action in Germany or Switzerland •— the defendants doing business in St. Gall in Switzerland and the plaintiffs doing business in Barmen in Germany, having a branch house in New York — and that their account is adjusted between them in Europe. The answer did not allege that anything would be found due to defendants upon the accounting, nor did it contain any set-off or counterclaim against the sum demanded in the complaint.

The issue presented by the pleadings was, in effect, whether the plaintiffs had paid the money claimed by mistake, and whether they were indebted to the defendants in any sum to which such payment could be applied. It appeared on the trial that the allegation of the complaint of two payments for the same invoice of goods, the last payment being made by mistake, was true; but it also appeared that plaintiffs thereafter, at the suggestion of defendants, allowed them to keep the remittance and place it to the plaintiffs’ credit against later invoices. Upon this fact being conceded defendants claimed the right to a dismissal of the complaint on the ground that the cause of action therein set forth was for money paid by mistake, whereas it appeared that the sum claimed was subsequently retained by defendants by agreement.

The motion to dismiss the complaint was properly denied. While there was an allegation that the money claimed was originally paid by mistake, the subsequent allegation that the defendants retained it without right, because plaintiffs were not indebted to them, made the action substantially for money had and received ; and the denials of the answer presented the issue which defendants claimed the right to try, and which was in fact tried in the action, viz., the right of defendants to retain and apply the amount in suit upon later invoices shipped to plaintiffs.

The evidence upon this point disclosed that the defendants were holding the money to reimburse them for damages sustained through the refusal of plaintiffs to receive such later invoices, plaintiffs rejecting the goods on the ground that deliveries were made after dates specified in the contracts, and defendants claiming that plaintiffs had waived the default by receiving the belated deliveries without objection. There was a question for the jury, and had the verdict disposed only of that contention it might not have been disturbed.

But the plaintiffs insisted upon another and untenable claim and procured a ruling thereon in their favor which defeats the present recovery. It appears that there was a third invoice of goods which, defendants delivered and plaintiffs received in August, amounting to $911.80, upon which plaintiffs claimed that the moneys in question, fcs. 5,208.55, should have been credited by defendants. Defendants refused to so credit, and having assigned the claim to their Hew York agent, he sued and recovered upon it against the plaintiffs, who did not offset nor counterclaim the fcs. 5,208.55, but paid the judgment. The refusal of defendants to credit the amount on that indebtedness was urged on the trial. of this action as a breach of the agreement by which they were to place that sum to plaintiffs’ credit against later invoices ; and it was claimed that such breach authorized plaintiffs to sue for the recovery of the fcs. 5,208.55 as wrongfully withheld. In that view of their right the trial judge concurred and instructed the jury, at their request, as follows : “ Fifteenth. If the jury find that plaintiffs were indebted to the defendants in the sum of $911.80 or thereabouts for the bill of silk handkerchiefs ordered in June, and at the time of such indebtedness, and when it became due, the defendants were holding this money in question as plaintiffs’ money, and the plaintiffs were entitled to deduct such sum from the amount held by the defendants, and the defendants nevertheless refused to apply it to the payment of this bill for silk hankerchiefs, then the jury must find the verdict for the plaintiffs, without taking into consideration any later shipments.”

Under this instruction the jury were at liberty to find that defendants ought to have credited the overpayment on the bill of $911.80, and if they so found were directed that they must render a verdict for the plaintiffs notwithstanding any indebtedness of plaintiffs for later shipments. This was a complete disregard by plaintiffs of their own demand in the complaint, which was based upon the absence of any indebtedness whatever from plaintiffs to defendants. No claim was made in the complaint for the return of the money on the ground of a contract to apply it upon a specific indebtedness and a breach of such contract; but the issue tendered was that they were not indebted in any sum before the commencement of the action, and under that pleading plaintiffs could not succeed if any indebtedness greater than their claim existed in favor of defendants.

For the erroneous instruction, the judgment must be reversed and a new trial ordered.

As objection to plaintiffs’ recovery was also made on the ground that the court had no jurisdiction of the action or of the defendants, and it is proper to dispose of that contention on this appeal; we, therefore, say that whatever merit there might have been in the objections to the jurisdiction of the court, they could not be considered because not raised by the answer. The jurisdiction of the court must always be presumed, and where defendant appears the want of jurisdiction by reason of the non-existence of any jurisdictional fact is waived by the appearance, unless it is pleaded in defense. Code, § 266. In this case there was a general appearance by defendants, and the answer does not plead want of jurisdiction. Popfinger v. Yutte, 102 N. Y. 38-43 ; Pease v. D., etc., R. R. Co., 10 Daly, 459.

Judgment reversed and new trial ordered, costs to abide event.

Bischoee and Pbyob, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  