Turlington v. Slaughter , 54 Ala. 195 ( 1875 )

BRICKELL, C. J.

The statute (R. C. § 2756,) requires that charges to the jury, moved for by either party, must be in writing. The record does not disclose that the several charges moved for by the appellant were in writing. If they asserted proper legal principles, applicable to the evidence, we must presume to support the judgment of the circuit court, they were refused because not in writing, rather than put the court in error by presuming they were written.—McKeithen v. Pratt, 53 Ala.; Hollingsworth v. Chapman, ante, 54 Ala. 7.

Money paid in ignorance, or under mistake of facts, may be recovered back.—Rutherford v. McIver, 21 Ala. 750; Wilson v. Sargent, 12 Ala. 778; Walker v. Mock, 39 Ala. 568, Money paid on a debt or demand, but which is not credited thereon, cannot be recovered back, if judgment is subsequently recovered for the whole debt.—DeSylva v. Henry, 3 Port. 132. The judgment is conclusive on the defense of payment, and all other defenses which could have been interposed in bar of the suit.—Freeman on Judg. § 286; Binck v. Wood, 43 Barb. 315.

The payment made by appellee to the appellant did not exceed the amount of the decree of the court of chancery. The evidence tends to show, however, that the decree exceeded the amount really due, and the question presented by the exception to the several charges given on request of appellee, is whether a promise to pay such excess, is supported by a sufficient consideration. If the decree was rendered for a larger amount than was really due, it was the error of the register in making the calculations on which his report of the amount due from the appellee was based; or, it was because the appellant had not given the appellee credit for all the payments to which he was entitled. Whether the excess was produced by the one cause or the other, the appellant was not in equity and good conscience entitled to any other or greater sum than the amount really due and unpaid. A mere moral consideration will not support an express promise — a valuable consideration must have at once existed creating a legal duty or obligation, barred at the time of the promise by some positive rule of law. If the proceedings in the court of chancery had reached such a stage, of which it is not necessary to inquire now, that the appellee had lost all remedy to correct the decree, it was because the appellant failed in the performance of the legal duty resting on him to take a decree only for the amount really due and unpaid. Failing in the performance of this duty, he was under a moral obligation either to abate the amount of the decree, or if under mistake it was paid to him, , to refund the excessive payment. This moral obligation, originating from a positive legal duty to which he could have' been compelled before the decree, will support an express promise to refund. In Vance v. Wells, 8 Ala. 399, goods during coverture were furnished to a married woman, on the faith of her separate estate, and she executed a note for them as surety of her husband. The only obligation resting on her at common law was a moral obligation. An express promise to pay made by her, after the death of her husband, was esteemed valid, on which an action at law could be supported. The reason is, the promise during coverture, though void at law, in equity created a charge on her separate estate, and the moral consideration originated from an obligation capable of enforcement in equity. In Bently v. Moore, 14 Johns. 468, the precise question involved in this case was presented. A debt was paid, on which judgment was subsequently recovered, the debtor not having made defense. The creditor subsequently promised to refund if the debtor had a receipt, for the payment, and an action on this promise was supported. In Thayer v. Mowry, 36 Me. 287, a promise by a creditor to allow upon a judgment, payments made prior to the judgment, was enforced. These decisions rest on the same reasoning, on which promises to pay after a discharge in bankruptcy, or after the statute of limitations has effected a bar, are maintained and enforced. The promise of appellant was valid, and founded on a sufficient consideration,

Judgment affirmed.