Beasley v. Beasley

• Decision Date: 20 October 1921
• Docket Number: 4 Div. 942
• Citation: 90 So. 347,206 Ala. 480
• Parties: BEASLEY v. BEASLEY.
• Court: Alabama Supreme Court

90 So. 347

206 Ala. 480

BEASLEY v. BEASLEY.

4 Div. 942

Supreme Court of Alabama

Oct. 20, 1921

Appeal from Circuit Court, Covington County; A.B. Foster, Judge.

Assumpsit by C.O. Beasley against J.R. Beasley. Judgment for the defendant, and plaintiff appeals. Transferred from Court of Appeals under section 6, Acts 1911, p. 449. Affirmed.

J.R Beasley purchased from C.O. Beasley a farm for which he agreed to pay $2,000, $1,000 to be paid in cash, and $1,000 to be paid January, 1919. The cash payment was made, and payments aggregating $1,100 were made at various times, but all before the due date of the mortgage. In the meantime C.O Beasley sold J.R. Beasley fruit trees amounting to $18.75 and also charged the recording fee of $3. Being unable to reach an adjustment, C.O. Beasley sued J.R. Beasley for the above amount together with an amount claimed to be due as interest on a mortgage. The defendant set up payment of the debt and a set-off of $100 composed of overpayment on the mortgage debt and other items of charge against plaintiff. The plaintiff complains that error occurred when the court refused to allow him to testify to a contemporaneous parol agreement made at the time the note and mortgage was executed, that appellee was to pay interest from the time the note was made, instead of from the due date of the transaction, and complains also that the court would treat the payment as voluntary, but submitted the latter question to the jury for their determination.

A.R. Powell, of Andalusia, for appellant.

J. Morgan Prestwood, of Andalusia, for appellee.

THOMAS J.

It is established that a contemporaneous parol agreement is not admissible in evidence to show the intention of the parties was other than that clearly expressed in the writing signed by them and evidencing their agreement. Formby v. Williams, 203 Ala. 14, 19, 81 So. 682, and authorities there collected; Planters' Chem. & Oil Co. v. Stearnes, 189 Ala. 503, 66 So. 699; Morris v. Robbinson, 80 Ala. 291. The paper writing in question is unambiguous, and no error was committed in rejecting evidence of the contemporaneous parol agreement made at the time the mortgage was executed, and not carried therein, that it was to draw interest from the date of its execution, and not from the date of maturity as therein written. The mortgage and note, contrary to the parol agreement, speak for themselves and may not be varied by parol.

In order to prevent a party to a contract from recovering for overpayment of moneys, he must have overpaid with full knowledge of all the material facts. Merrill v. Brantley, 133 Ala. 537, 538, 31 So. 847; Rutherford v. McIvor, 21 Ala. 750, 756; 30 Cyc. 1300. In Merrill v. Brantley, Mr. Justice Sharpe said:

"To disentitle a party, on such ground, to recover [money paid without consideration], it must appear that he had actual knowledge of the attendant facts which were calculated to influence the making or withholding of the payment."

See Hinds v. Wiles, 12 Ala.App. 596, 68 So. 556; Rutherford v. McIvor, supra; Youngblood v. Youngblood, 54 Ala. 486; Young v. Lehman, Durr & Co., 63 Ala. 519.

The general text of 30 Cyc. 1319, 1320, supports the proposition that an overpayment of interest by mistake can be recovered. The fact that a person, when making a payment, had the means of knowing the facts, does not of itself ordinarily preclude him from recovering the money, if he did not have actual knowledge that the sum paid was an overpayment. Merrill v. Brantley, supra; Rutherford v. McIvor supra; Russell v. Richard, 6 Ala.App. 73; ^[1] Hinds v. Wiles, supra; Wilson v. Sergeant, 12 Ala. 778; 30 Cyc. 1320, where the authorities of American and English courts are collected. The recovery is rested on the fact that one has money which ex aequo et bono belongs to another. Jasper Co. v. K.C., M. & B.R.R. Co., 99 Ala. 416, 14 So. 546, 42 Am.St.Rep. 75; Christie v. Dyer, 205 Ala. 572, 88 So. 668; Christie v. Durden, 205 Ala. 571, 88 So. 667. If defendant knew that the paper was written as it was, for $1,000 due January 1, 1919, but supposed that its proper construction imposed upon him the payment of interest from date of execution, and by reason of this construction made the overpayment, he would not be permitted to recover the overpayment, since it was paid under a mistake of law, and...