Mitchell v. . Moore

*353 Adams, J. This was a civil action beard.on an appeal taken by tbe defendants from tbe judgment of a justice of tbe peace. In December, 1923, tbe plaintiffs purchased from tbe defendants a bouse and lot and agreed to pay tberefor tbe sum of $5,500. Tbey paid $500, assumed a first mortgage indebtedness represented by tbe defendants to be $2,846.94 due tbe Acacia Mutual Life Association, and secured tbe remainder by tbe execution of a second mortgage. Tbe amount originally due tbe Life Association was $3,000, and tbe defendants told tbe plaintiffs tbey bad paid tbereon $153.06, thereby reducing tbe indebtedness to $2,846.94. Tbe plaintiffs alleged that tbey bad afterwards learned that in tbe payment of $153.06 was included tbe sum of $88, which was interest on tbe debt and not a part of tbe principal which tbey bad agreed to pay. Tbe object of tbe action is to recover this sum as an overcharge or a sum in excess of tbe agreed price. Under instructions, to which there was no exception, tbe jury returned a verdict finding that tbe plaintiffs were entitled to a credit of $86.00 as a charge in excess of tbe sum due on tbe first mortgage. There was a motion for nonsuit ón tbe ground that tbe mortgage was a matter of record, and that all tbe facts were known to tbe plaintiff when tbe trade was made. Tbe motion was denied. One of tbe sources of obligations created by quasi-contracts is tbe receipt of a benefit, tbe retention of which, without compensation, would constitute “unjust enrichment,” illustrated by money paid under a mistake of fact. Woodward, ^wasi-Oontracts, sec. 1. If tbe defendants were not entitled to tbe alleged overcharge, a fact made certain by tbe verdict, tbey bad no right to retain it. Tbe principle as stated by Greenleaf is quoted in Bahnsen v. Clemmons, 79 N. C., 556: “When tbe defendant is proved to have in bis bands tbe money of tbe plaintiff, which ex equo et tono be ought to refund, tbe law conclusively presumes that be has promised to do so, and tbe jury are bound to find accordingly; and after verdict tbe promise is presumed to have been actually proved.” Tbe appellants interposed a demurrer on tbe ground that a justice of tbe peace bad no jurisdiction of tbe action and that as tbe jurisdiction of tbe Superior Court was derivative, none was acquired by tbe appeal. Tbe action was brought, not to correct or reform tbe note, but to recover money which otherwise would go to tbe “unjust enrichment” of tbe defendants. This will appear by reference to tbe justice’s summons which, in tbe absence of a more formal pleading, may be regarded as a substitute for tbe complaint. Allen v. Jackson, 86 N. C., 321; Cromer v. Marsha, 122 N. C.,. 563; Parker v. Express Co., 132 N. C., 128. For this reason we need not advert to decisions dealing with tbe *354 question whether a justice, of the peace in any event can administer equitable relief. There is a distinction, however, between declaring an equity and enforcing the collection of money which equitably belongs to a party. Fidelity Co. v. Grocery Co., 147 N. C., 510; Stroud v. Ins. Co., 148 N. C., 54. No error.