86 Ala. 202 | Ala. | 1888
The account, which was transferred by Farabee, Hunter & Co. to plaintiff, having been paid, either
The following facts are undisputed: On June 7, 1887,
The institution of legal proceedings is not requisite to constitute a compulsory payment. If the plaintiff made the payment to the bank because of a legal liability, the payment is not voluntary. The bank having received the draft, and having undertaken its collection, was liable to the holders for any loss occasioned by the negligence of its employee; and the plaintiff, being an employee of the bank, is responsible to it for any damage caused by his negligence or his mistake in the performance of his services. — Mobile & Montgomery Railway Co. v. Clanton, 59 Ala. 392. The defendant being primarily liable for the payment of the draft, if, by design on his part, or by mistake of the plaintiff, known to defendant, he only paid a small portion of the draft as the full amount, and took up the draft as paid, and the bank has paid the entire amount to the holders of the draft, and the plaintiff has paid it to the bank, his claim to be reimbursed is based on sound principle. Of course, if the defendant paid the entire amount of the draft, the plaintiff is not entitled to recover. On this material question of fact, the evidence was in conflict; and being in conflict, the question should have been submitted to the jury. When there is a conflict in parol evidence, the affirmative charge in favor of either party should not be given.
Reversed and remanded.