Beard v. Horton

• Decision Date: 07 January 1889
• Citation: 86 Ala. 202,5 So. 207
• Parties: BEARD v. HORTON.
• Court: Alabama Supreme Court

5 So. 207

86 Ala. 202

BEARD v. HORTON.

Supreme Court of Alabama

January 7, 1889

Appeal from circuit court, Jefferson county; LEROY F. BOX, Judge.

This action was commenced by the appellant, J. W. Beard, suing by his next friend, against the appellee, H. M. Horton, by attachment sued out and levied on the goods alleged to be owned by the defendant, on the 8th day of October, 1887. It was brought for the recovery of money alleged to have been paid by the plaintiff for the defendant. The defendant pleaded the general issue, and issue was joined on this plea. The facts, which are undisputed by the evidence, as produced on the trial of the case, and about which there is no controversy in the contestation of the case, are sufficiently set out in the opinion. The main ground of dispute in the evidence is as to the payment of the draft, which was drawn on the defendant by a commercial firm in the city of Memphis. The plaintiff introduced evidence tending to show that the said defendant, instead of paying him the sum of $370.86, the amount which the draft called for, only paid the plaintiff $52.90. There was evidence on the part of the defendant tending to show that the draft had been paid in full. The court charged that, "if the jury believe all the evidence in this cause, they should find a verdict for the defendant." The plaintiff appeals.

Weatherly & Putnam, for appellant.

Martin & McEachin, for appellee.

CLOPTON J.

The account, which was transferred by Farabee Hunter & Co. to plaintiff, having been paid, either by defendant or the Birmingham National Bank, before its transfer, does not constitute a sufficient cause of action. As the case is presented by the record, the gravamen of the action is money paid by appellant for the benefit of the appellee. The principles which underlie such actions are well settled. In order to enable one who paid money to the use of another to maintain an action for money paid, two things are essential,-a legal liability on the part of the defendant to pay the original demand, and his antecedent request or subsequent promise to pay. No person can make another a debtor against his will, and a voluntary payment of the debt of another, without his knowledge or consent, the party paying being under no legal obligation to pay, will ordinarily be regarded a gratuity, and the money paid cannot be recovered back. An express request or promise is not essential. If the party paying is under a legal obligation to pay, and a primary obligation rests on the person for whose benefit the money is paid, a request or promise, sufficient to uphold the action, will generally be implied. As illustrative, the following instances may be noticed: Money paid in ignorance or under mistake of facts may be recovered. Young v. Lehman, 63 Ala. 519. A party compelled, in order to preserve his rights, to pay the debt of another, may recover the amount so paid from the person whose duty it was to have paid the debt. Walker v. Smith, 28 Ala. 569. Also, where a person is compelled, by operation of law, to pay a debt, which another in equity and good conscience ought to pay, he may recover the amount of such person. Bank v. Smiley, 27 Me. 225. It has been held that a surety on the official bond of a sheriff who has paid a judgment recovered against him for his principal's...