90 So. 347 | Ala. | 1921
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,
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,
"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,
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,
There was no motion for a new trial in the court below. The issue was fully and fairly submitted to the jury, and judgment was for plaintiff. The burden of proof was on defendant under his plea of recoupment (Lysle Mill. Co. v. Nor. Ala. Gro. Co.,
The judgment of the circuit court is affirmed.
Affirmed.
ANDERSON, C. J., and McCLELLAN and SOMERVILLE, JJ., concur.