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 was 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 P. 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 agreement 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. We find no error in the record, and the judgment of the trial court is affirmed.
Affirmed.