Awalt v. Eutaw Bldg. Ass'n, No. 4

• Decision Date: 13 June 1871
• Citation: Awalt v. Eutaw Bldg. Ass'n, No. 4, 34 Md. 435 (Md. 1871)
• Parties: FREDERICK AWALT v. THE EUTAW BUILDING ASSOCIATION, NO. 4.
• Court: Maryland Court of Appeals

34 Md. 435

FREDERICK AWALT v. THE EUTAW BUILDING ASSOCIATION, NO. 4.

Court of Appeals of Maryland

June 13, 1871

APPEAL from the Court of Common Pleas.

This was an action of assumpsit brought by the appellant to recover from the appellee an alleged over-payment, made under the circumstances set forth in the opinion of the Court.

Exception: The plaintiff prayed the Court to instruct the jury as follows:

If the jury find from the evidence that the plaintiff borrowed from the defendant the sum of $3,000, and paid to it, on account thereof, $807.50, leaving due $2,192.50, and that in order to obtain a release of the mortgage given to secure the sum so loaned, he was compelled to pay, and did pay, on account of the said indebtedness, the sum of $2,515.90, he is entitled in this action to recover the difference between such sums viz: $323.40, with interest thereon from the 20th of February, 1869, the date when such payment was made.

The defendant offered the following prayer:

If the jury shall find from the evidence, that the plaintiff was a member of the Eutaw Building Association, No. 4, the defendant in this cause, to which he had mortgaged certain property, and that to obtain a release of said mortgage, he did, on or about the 20th of February, 1869, pay to said association the sum of $2,515.90, (of which the sum claimed in this action, to wit: $323.40, was a part,) which amount was demanded of him by said association as a matter of right under the provisions of the mortgage; and if they shall further find that the attention of the plaintiff was directed to said alleged over-charge before payment, and that although he believed and asserted that it was not a proper charge yet, for reasons satisfactory to himself, and without any fraud on the part of the defendant or its agents, afterward assented to and paid the same, then they must find for the defendant.

The Court rejected the plaintiff's prayer and granted the prayer of the defendant. The plaintiff excepted, and the verdict and judgment being against him, he appealed.

The cause was agued before BARTOL, C.J., BRENT, GRASON, ALVEY and ROBINSON, J.

John H. Ing, for the appellant.

Joseph S. Heuisler, for the appellee.

ROBINSON J., delivered the opinion of the Court.

The appellant having executed a mortgage to secure the payment of $3,000 loaned by the appellee, made application to have the property released from the effect and...