Rodgers v. Wittenmyer

Citations

• 88 Cal. 553
• 26 P. 369
• 1891 Cal. LEXIS 731

Syllabus

<p>Payment—Recovery of Excess — Agreement to Repay — Pleading. — A complaint shows a cause of action with sufficient certainty for the - recovery of an excessive payment, if it alleges, in substance, that the plaintiff, a mortgagor of property, and the defendant, the mortgagee, differing as to the amount due upon the mortgage, agreed that if the mortgagor would pay the amount claimed by the mortgagee to be due, and if it should afterwards be found that the amount so paid was in excess of the amount due, the mortgagee would repay to the mortgagor such excess, and that the amount paid was in excess of the amount due, but that the excess had not been repaid.</p> <p>Id. — Proof of Agreement—Compulsory Payment — Insufficiency of Evidence. — Evidence to the effect that when the money was paid the plaintiff was prepared to pay the amount claimed under protest, and that when the mistake in the amount was discovered the plaintiff notified the defendant, who agreed to come and see about it, and said that if the plaintiff “ was right, it would be right,” fails to prove any agreement of the defendant to recoup or repay to the plaintiff any money, or to show that the payment of any excess was made under compulsion.</p>