
    Emil Dieckerhoff et al., Resp’ts, v. Otto Adler et al., App’lts.
    
      (New York Common Pleas, General Term,
    
    
      Filed May 6, 1895.)
    
    1. Pleadings — Money had and received.
    Though, in an action for money had and received, there is an allegation in the complaint that the money claimed was originally paid by mistake, a subsequent allegation that the defendants retained it without right, because plaintiffs were not indebted to them, makes the action substantially for money had and received, and a motion to dismiss is properly refused.
    3. Same — Failure to apply.
    Where, in an action to recover moneys paid by mistake, it appears that the defendants were allowed by agreement to retain and apply such moneys upon any future indebtedness, a charge that, if defendants failed to apply the money to a certain sale made by them to plaintiffs after the agreement, and at that time were holding the money as belonging to plaintiffs, plaintiffs are entitled to recover, notwithstanding any indebtedness on subsequent sales, is erroneous under an issue that they were not indebted in any sum before the commencement of the action.
    3. Jurisdiction — Waiver.
    Want of jurisdiction by reason of the non-existence of any jurisdictional fact is waived by the appearance of the defendant, unless it is pleaded in defense.
    Appeal from a judgment entered on a verdict in favor of plaintiffs, and from an order denying a motion for a new trial.
    
      Hatch & Wickes, for app’lts; George Carleton Comstock, for resp’ts.
   Daly, C. 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, 5,208.55 francs, 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 defendant 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 in-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, andaré 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 allegations 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 plaintiff thereafter, at the suggestion of defendants, allowed them to keep the remittance, and place it to 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 allegations 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 discloses 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 insist 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 — 5,208.55 francs- — should have been credited by defendants. Defendants refused to so credit, and, having assigned their claim to their New York agent, he sued and recovered upon it against the plaintiffs, who did not offset or counterclaim the 5,208.55 francs, 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 5,208.55 francs as wrongfully withheld. In that view of their right the trial judge concurred, and iustructed the jury, at their request, as follows:

“ Fifteenth. If the jury finds that plaintiffs were indebted to the defendant 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 handkerchiefs, 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 plaintiff of their own demand in the complaint, which was. based upon the absence of any indebtedness whatever from plaintiffs to defendants. Ho 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, 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 nonexistence 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. Railroad Co., 10 Daly, 459.

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

All concur.  