Iula v. Grampa

263 A.2d 548, 257 Md. 370
CourtCourt of Appeals of Maryland
DecidedMarch 31, 1970
DocketNo. 279
StatusPublished
Cited by1 cases

This text of 263 A.2d 548 (Iula v. Grampa) is published on Counsel Stack Legal Research, covering Court of Appeals of Maryland primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Iula v. Grampa, 263 A.2d 548, 257 Md. 370 (Md. 1970).

Opinion

Singley, J.,

delivered the opinion of the Court.

In the summer of 1961, Grampa, the plaintiff below and appellee here, was a 63 year old Italian immigrant who owned the Norge Bar on South Broadway in Balti[372]*372more. Morgan L. Amaimo, a lawyer who practiced in Baltimore, came to Grampa’s bar in connection with his representation of the son of one of Grampa’s barmaids. In the course of conversations with Grampa, Amaimo learned that Grampa was considering retiring from the tavern business and might have some money to invest. Amaimo introduced Frank J. lula, a friend and client, to Grampa.

In December of 1961 Grampa loaned $6,000 to lula and Edward Davis, an associate of Iula’s, and took back 12 of their joint confessed judgment notes for $625 each,1 one of which matured each month commencing in February of 1962. The money borrowed by lula and Davis was supposed to be used for the purchase of a tavern at Riviera Beach, a transaction which was never consummated. By March of 1962, two of the notes were in default. Grampa complained to Amaimo who arranged for Grampa to buy from Carmela A. lula, Frank J. Iula’s mother, a judgment for $15,000 which she had entered on 21 February 1962 on a confessed judgment note of Peacock Land Corporation (Peacock), of which Frank J. lula was president. Grampa paid $11,250 for the judgment : $10,000 in cash and the two $625 notes of lula and Davis which were then in default.

Both the notes and the judgment later proved to be worthless. Grampa had judgment entered on eight of the notes in November of 1962 and by February of 1964 all hope of collecting on the judgment assigned to Grampa by Mrs. lula had vanished.

■ In March, 1965, Grampa filed a bill of complaint in Circuit Court No. 2 of Baltimore City against Amaimo, lula, Mrs. lula and Davis in which he sought a rescission of the transactions and an award of damages because of the fraud and deceit allegedly practiced upon him. Davis could never be found, and the case came on for hearing against Amaimo, lula and Mrs. lula. From a decree re[373]*373scinding the assignment of the judgment and entering judgment for $11,250 with interest from 13 March 1962 and costs against Amaimo and lula, this appeal was taken. No cross appeal was entered in respect of the portion of the decree dismissing the bill as against Mrs. lula or because the court refused to rescind the promissory-notes.

Amaimo challenges the decree on the ground that it was error for the chancellor to find that Amaimo defrauded Grampa. Iula’s argument is somewhat more complex: on the one hand he says that Grampa, having entered judgments on the eight notes, has elected his remedy and could not later seek equitable relief in connection with an obligation arising from the same transaction. On the other hand, lula argues that there can be no fraud when the value of the assigned judgment eroded subsequent to the assignment as a result of events beyond his control.

In an effort to achieve simplicity, we propose to deal with these contentions in reverse order of presentation.

(i)

Election of Remedies

While lula is quite correct in arguing that not more than one suit may be instituted on the same instrument, Maryland Code (1957, 1968 Repl. Vol.) Art. 50 § 2 and that rights cannot be enforced piecemeal, Ex parte Carlin, 212 Md. 526, 129 A. 2d 827 (1957) ; Olmstead v. Bach, 78 Md. 132, 27 A. 501, 22 L.R.A. 74 (1893) ; Whitehurst v. Rogers, 38 Md. 503 (1873), these principles are not applicable here. The short answer to this contention is that there were two wholly different and quite distinct obligations: One was the joint obligation of lula and Davis on the eight promissory notes which were ultimately reduced to judgment. The other was the judgment entered in favor of Carmela lula against Peacock Land Corporation, which was assigned by Mrs. lula to Gram-pa. Without passing on whether the rescission of the [374]*374notes was barred by limitations, as the court held, or because Grampa had elected his remedy, as lula contends, we think that the chancellor was quite correct when he treated the transactions as separate and distinct and allowed recovery on the judgment and denied relief on the notes.

(ii)

Fraud

The question whether Amaimo and lula or either of them practiced fraud and deceit on Grampa should be viewed in the.light of two prior cases, Carozza v. Peacock Land Corp., 231 Md. 112, 188 A. 2d 917 (1963) and Iula v. Progress Fed. S & L Ass’n, 247 Md. 421, 231 A. 2d 510 (1967) both of which bear peripherally on the problem. In Carozza, we sustained the purchaser’s exceptions to the ratification of a sale at foreclosure of Peacock’s property in Baltimore County for $275,700, holding that the inaccurate description of the property in the advertisement of sale amounted to a material misrepresentation.

In Iula, we held that when the same property, correctly described in the advertisement, had been resold in March of 1963 for $224,000, there could be no recovery of damages under the facts of that case, by lula, the mortgagor, against the mortgagee and the trustee who conducted the foreclosure sale because while neither the mortgagee nor the trustee was aware that the advertisement was in error, lula did know and failed to disclose it.

What is salient here, however, goes beyond the rubric of the two cases. Peacock defaulted on its mortgage prior to 4 August 1961. On 25 September 1961, Peacock entered into a deed of trust for the benefit of creditors. On 10 November 1961, the property was sold for $275,700. The purchaser’s exceptions were filed on 15 December 1961. Mrs. lula entered her confessed judgment on 21 February 1962, more than two months after the exceptions had been filed. The exceptions were overruled on 18 May 1962, and on 19 March 1963, we filed our opin[375]*375ion, holding that the exceptions should have been sustained and remanded the case in order that the property could be resold.

It was during the period between the institution of the foreclosure in August, 1961, and the hearing on the exceptions in May of 1962 that Grampa’s conversations with Amaimo and lula took place. Grampa described them in his testimony:

“Q * * * How often after you met Mr. Amaimo did you see him thereafter ?
“A Pretty often. I would say, once every eight or ten days.
“Q I see. And would you describe to the Judge in your own words what you all said to each other and what you all conversed about?
“A Well, it was something like an acquaintance and we started talking and — Amaimo likes his beer, and he start talking. He start asking me different questions. How long had I been in business and so forth, and how old I was. I told him how old I was and I told him how long I was in business and that I had intentions to retire about a year after that. And he asked me what I intended to do after I retired. Well, I said, ‘After I sell my business, I have a piece of property and I intend to buy some more and take care of that.’ And he told me he knew a lot about property. In fact, he says, ‘I have a shopping center and a gasoline station.’ And he told me, ‘I know about a lot of property. If I run into something, would you consider it?’ I said, ‘Well, it’s too early yet.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Iula v. Grampa
263 A.2d 548 (Court of Appeals of Maryland, 1970)

Cite This Page — Counsel Stack

Bluebook (online)
263 A.2d 548, 257 Md. 370, Counsel Stack Legal Research, https://law.counselstack.com/opinion/iula-v-grampa-md-1970.