
    Alpha A. Roberts, App’lt, v. William Ellwood, Resp’t.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed October 8, 1889.)
    
    Money paid — Mistake.
    Where a mortgagor settles a foreclosure action by reconveying the land and paying a sum named, hut in doing so the indorsements were not compared with the receipts or the amounts unpaid ascertained, he cannot after-wards recover back an alleged payment as not having been indorsed on the bond by mistake.
    Appeal from an order of the general term of the fifth judicial department, reversing a judgment entered on a verdict arid granting a new trial upon exceptions.
    October 19, 1876, the defendants conveyed 145 acres of land to Moses P. Roberts for $4,850. Roberts, by the bond of himself and wife, agreed to pay the principal in four equal annual payments, with annual interest at the rate of seven per cent., to wit.: October 19, 1877, $1,892; October 19,1878, $1,315.87; October 19,1879, $1,239.75; October 19, 1880, $1,163.62; and as collateral to the bond, he and his wife mortgaged the purchased premises. The mortgage contains the following covenant: “ The parties of the
    first part further covenant that so fast as they or either of them shall remove $300 worth of timber from said premises, they will pay over the proceeds or purchase price thereof to the parties of the second part, and that when $300 worth of timber are removed from the soil of said premises, no more shall be cut until timber cut is paid for. The party of the first part to have the privilege of paying $100 or over at any time during the first year above the amount of first payment.” As a further security for the payment of the sums due on said bond October 19, 1877, and October 19, 1878, said Moses P. Roberts and his wife, October 19,1876, mortgaged to the defendants land owned by her. In the summer of 1877 Roberts contracted to sell all of the bark on the land and began drawing it and the timber away, which the defendants restrained by injunction, for non-compliance with the above covenant. November 2, 1877, Roberts paid $785.65 on the bond and the suit was withdrawn.
    The following payments were made on the bond and mortgage:
    Aug. 18, 1877. Endorsed on bond, receipt.......... $641 00
    Nov. 2, “ “ •“ “ .......... 785 15
    Dec. 26, “ Controverted by defendants, receipt... 585 15
    Oct. 19, 1878, Endorsed on bond, “ .. 200 00
    
      Jan. 23, 1879, Endorsed on bond, receipt... $300 00
    Ap’l 17, (Í U U i< 50 00
    May 21, u U u u 100 00
    June 5, « u u u 130 00
    “ 30, u ÍÍ u a 145 73
    Aug. 15, u (£ tt ti 50 00
    Sept 22, u it U u 58 32
    “ 22, .£ u a u 180 00
    Nov. 6, U Stipulation and receipt on settlement... 260 00
    $3,485 35
    In September or October, 1879, the defendants began a suit for the foreclosure of the mortgages. November 6, 1879, Roberts re-conveyed the 145 acres to the defendants, and paid the above $260, and thereupon the defendants canceled the bond, both mortgages, and discontinued the suit.
    In June, 1880, Moses P. Roberts began this action, alleging that December 26, 1877, he paid defendants $585.15, for which he held their receipt (third item" in above statement), which was not endorsed on the bond, “was not applied on said debt by reason of such mistake, and said mortgage was paid in full, besides the amount mentioned in said receipt, and the same was duly discharged by the defendants, and said foreclosure action was discontinued and settled.” In a second count it is alleged that December 26, 1877, the defendants received $585.15, to apply on the bond and mortgage, which they failed to apply, and are indebted to plaintiff in that amount for money had and received, with interest.
    Upon the trial the jury rendered a verdict against William Ellwooa for the amount claimed and interest; but rendered a verdict of no cause of action in favor of the defendants Barr and Platt. No motion for a new trial was made on the minutes at the circuit, or on a case at special term; but Ellwood appealed from the judgment to the general term, where the case was heard on the exceptions, reversed and a new trial granted, with costs to abide the event.
    The plaintiff appealed to this court, and after the return was filed, he assigned Ins interest to Alpha A. Roberts, who was substituted in the place of the original plaintiff, by an order of this court, granted November 30,1886.
    
      W. Woodbury, for app’lt; A. C. Calkins, for resp’t.
    
      
       Affirming 40 Hun, 633, mem.
      
    
   Follett, Ch. J.

The case is barren of evidence tending to show that the settlement of November 6,1879, "was made on the basis of the amounts which either, or both parties, then supposed had been paid on the bonds. It does not appear that the several endorsements were compared with the receipts held by the mortgagor, or that the payment represented by the endorsements on the bond and receipts held by the mortgagor were even aggregated, or ths amount unpaid on the bond ascertained. It does not appear that the value of the land at the date of the settlement was agreed on, or even estimated. The first cause of action, which rests on the theory that the plaintiff had paid his bond in full, without taking into account the sum of §585.15 in dispute, is without any support in the evidence.

The second cause of action for money had and received, is a kind of an equitable action, in which the recovery, if had, must be according to what is just and good, ex aequo et bona. Colvin v. Holbrook, 2 N. Y., 126, 130; Kingston Bank v. Eltinge, 66 id., 625; 4 Wait’s A. & D. 469; 1 Selwyn’s N. P., 13 ed., 99. To have enitled the plaintiff to recover under this count, the evidence should have shown that the defendants had received money from the plaintiff which, in good conscience, the defendants ought not to have retained.

To have established this the plaintiff might have shown that the defendants dsfrauded him, but there is no allegation or evidence of fraud; or, he might have shown that there was a mistake, which resulted injuriously to him. But, as before stated, there is no evidence that the value of the land reconveyed was agreed upon, or talked about, or that the amount which the plaintiff had paid upon the bond was agreed upon or talked about; If the verdict could be sustained, the terms of settlement would be altered, and instead of this plaintiff paying, FTovember 6,1879, $260, and reconveying the land for a discharge of his bond and both mortgages, he would receive from the defendants $325.15. There is no evidence that either party contemplated such a result, much less that the defendants would have agreed to it.

The plaintiff cites Calkins v. Griswold, 11 Hun, 208; Wheadon v. Olds, 20 Wend., 174. In these cases articles were sold at a price agreed on, and the amount due was ascertained by a computation of quantities, the aggregate of which was afterwards discovered to have been considerably less than the aggregate mutually supposed to have been delivered, and for which the plaintiff, in each case, paid. It was held that the amount overpaid might be recovered in an action for money had and received. There is no doubt about the correctness of these decisions. This question has long been well settled. But we have attempted to show, and as the general term proved, the elements in the cases cited and on which the recoveries were based are entirely absent from the case at bar.

The order should be affirmed and a judgment absolute ordered against the appellant on his stipulation, with costs.

All concur, except Bradley and Haight, JJ., not sitting.  