Rodgers v. Wittenmyer

Sharpstein, J. This action was brought to recover $427.50, alleged to have been paid in excess of the sum due from plaintiff to defendant upon a certain mortgage held by defendant upon the land of plaintiff. The jury rendered a verdict in favor of plaintiff for three hundred dollars, and defendant has appealed from the judgment and an order denying his motion for a new trial.

The allegations of the complaint are, that the defendant had a mortgage upon land of the plaintiff to secure the payment of six thousand dollars, and interest thereon, and about February 21, 1887, defendant commenced an action to foreclose said mortgage; that in May, 1887, while said action was still pending, plaintiff being desirous of terminating said action and saving further costs to himself therein, and of liquidating and discharging his indebtedness to the defendant under said mortgage and said action, offered to pay to the defendant the mortgage money, interest, costs, and counsel fees due and payable thereunder; that all that was then lawfully due to the defendant by reason of the premises was the sum of $4,000, principal, and the sum of $2,127.50, interest, $150 counsel fees, and $25 costs, making in all $6,302.50, which plaintiff offered to pay, but defendant demanded $6,730. Plaintiff protested against paying more than the said sum of $6,302.50, but said defendant refused to take less than said sum of $6,730, and agreed that she would recoup to plaintiff the difference between said sums, to wit, the sum of $427.50, if it afterwards transpired that a mistake had been made in the calculation of principal and interest and costs aforesaid; that plaintiff thereupon paid to defendant said sum of $6,730, [555]under protest as to said sum of $427.50. The plaintiff alleges that defendant did make a mistake of $427.50 in said calculation, and although often requested by plaintiff to pay him said sum of $427.50, defendant has not paid the same or any part thereof to plaintiff, wherefore he demands judgment for that sum.

Defendant demurred to the complaint on the ground,— 1. That it does not state facts sufficient to constitute a cause of action; 2. That it is ambiguous and unintelligible.

The demurrer was overruled, and appellant claims that the court erred in overruling it.

The complaint, as we construe it, alleges, in substance, that the plaintiff and defendant differing as to the amount due upon the mortgage, defendant agreed that if plaintiff would pay the amount claimed by defendant to be due, and it afterwards transpired that the amount so paid was in excess of the amount due, defendant would repay to plaintiff such excess. That was sufficient to constitute a cause of action, and we fail to discover any ambiguity or uncertainty in it. We think the demurrer was properly overruled.