(77 South. 419)

#### BAILEY v. MINGE.

(2 Div. 141.)

(Court of Appeals of Alabama.

Nov. 13, 1917.

Rehearing Denied Dec. 18, 1917.)

Payment <&wkey;82(2) — Recovery—Yoluntary— Reservation oe Right to Litigate Amount.

Where there is a controversy between the parties as to the amount due under the contract, and the greater amount is paid and accepted with the agreement that the party paying will sue for the excess payment, it is equivalent to an agreement for payee to hold as trustee and to adjudicate the amount in court, and is sufficient to support an action, and the payment is not voluntary.

*270Appeal from Law and Equity Court, Marengo County; Edward J. Gilder, Judge.

Action by Bessie C. Minge against Walter E. Bailey. Judgment for plaintiff, and defendant appeals.

Affirmed.

This is an action on the common counts, to recover an excess amount claimed to have been paid by the plaintiff to the defendant in the settlement of the amount claimed to have been due under a contract for the redemption of land, the plaintiff in the court below (appellee hei’e) claiming that in the settlement of the amount due under a contract between her and the defendant (appellant here) the defendant demanded and she paid a certain amount, the defendant claiming it to be the correct amount, and she claiming it to be in excess of the true amount due; that at the time of and contemporaneous with the payment the plaintiff stated to the defendant both orally and in writing that she w;as paying an excess-, and that she would sue to recover it. With this statement, and without objection, the defendant' accepted the payment and executed and delivered the deeds to certain lands called for by the contract between the parties. The case was tried before the court without the intervention of a jury, on the plea of the general issue, with leave to give in evidence any matter of defense as if the same had been specially pleaded. There was evidence tending to support the plaintiff’s contention, and the court rendered judgment for plaintiff and from the judgment the defendant appeals. The error insisted upon in appellant’s brief is the rendition of the judgment for plaintiff.

Pettus, Puller & Lapsley, of Selma, for appellant. George Pegram, (of Faunsdale, for appellee.

SAMFORD, J.

The contention of appellant is, and upon it he bases his right to reversal, that although the plaintiff did serve notice on the defendant at the time of the payment of the money that it wgs paid under protest, and that plaintiff would sue to recover it, that fact does not save the payment from being voluntary, unless the facts and circumstances amount to a legal compulsion.

If the payment was voluntary and unconditional, under a full knowledge of all the facts, a mere protest, without legal compulsion, does not rescue such payment from being voluntary. Welch v. Mayor and Council of Marion, 48 Ala. 291.

So also money paid for the redemption of property, although under protest, is a voluntary payment if the parties know all the facts (Leahy v. Warden, 163 Cal. 178, 124 Pac. 825), but where there is a controversy between the parties to a contract as to the amount due under the contract,- one claiming more, and the other less, and the greater amount is paid and accepted with the agreement, either express or implied, that the parties' paying will sue for the excess payment, it is equivalent to an agree.ment between the parties to leave the amount due open, to be adjudicated by -the proper court,.and- constituting the payee a trustee to hold the fund in dispute, to await such adjudication. Such agreement is sufficient to support an action, and the pleadings in this case are broad enough - to present the issue, and the evidence for plaintiff tended to support her contention.

The court, from the evidence, found that an amount in excess of the amount due had been paid to the defendant by the plaintiff, and rendered judgment accordingly. ÍWS find no error in the record, and the judgment of the trial court is affirmed.

Affirmed.