114 A. 567 | Md. | 1921
By a contract in writing the appellant agreed to purchase certain real estate in the City of Baltimore for the sum of $4,050, subject to a ground rent which was described as redeemable. Prior to the date appointed for compliance with the terms of sale, the appellant executed an assignment of all his "right, title and interest" in the contract to the appellee. The assignment was endorsed on the contract and recited that it was made for value received. The actual consideration for the transfer was $350, which was paid by a check drawn by the appellee, on which there was a notation that it was to be used only at the time of the conveyance of the property. An examination of the title having disclosed that the ground rent to which the contract of sale referred was irredeemable, and that the title was, therefore, not such as the purchaser had a right to demand, the transaction could not be consummated. The return of the amount paid by the appellee's check to the appellant, which in the meantime had been cashed, was then requested and refused. The present action ensued, and the trial before the court below, sitting as a jury, resulted in a verdict and judgment in the appellee's favor for $365.75, being the amount of its payment with interest. Only one exception was taken at the trial, and that was to the refusal of the court to rule that the appellee was not entitled to recover.
The defense in the case is that the appellant merely assigned his interest in the contract of sale to the appellee, and that as the assignment contained no warranty of the title to the property mentioned in the contract, the assignor's right to retain the sum paid him for the transfer is not affected by the inability of the owner of the property to convey such a title as the contract describes. But there was testimony on behalf of the appellee that when the assignment was executed the appellant agreed to return the amount paid him if the title was not as specified in the contract of sale. No objection was made to the admissibility of this testimony, and it consequently had the effect of competent proof for the purposes *655
of the trial. Sentman v. Gamble,
Judgment affirmed, with costs. *656