The account, which was transferred by Farabee, Hunter & Co. to plaintiff, having been paid, either *204by defendant or tbe Birmingham National Bank, before its transfer, does not constitute a sufficient cause of action. As the case is presented by the record, the gravamen of the action is money paid by appellant, for the benefit of the appellee. The principles, which underlie such actions, are well settled. In order to enable one, who paid money to the use of another, to maintain an action for money paid, two things are essential — a legal liability on the part of the defendant to pay the original demand, and his antecedent request, or subsequent promise to pay. No person can make another a debtor against his will; and a voluntary payment of the debt of another, without his knowledge or consent, the party paying being under no legal obligation to pay, will ordinarily be regarded a gratuity, and the money can not be recovered back. An express request or promise is not essential. If the party paying is under a legal obligation to pay, and a primary obligation rests on the person for whose benefit the money is paid, a request, or promise, sufficient to uphold the action, will generally be implied. As illustrative, the following instances may be noticed: Money paid in ignorance, or under mistake of facts, may be recovered. Young v. Lehman, 63 Ala. 519. A party compelled, in order to preserve his rights, to pay the debt of another, may recover the amount so paid, from the person whose duty it was to have paid the debt. — Walker v. Smith, 28 Ala. 569. Also, where a person is compelled by operation of law to pay a debt, which another in equity and good conscience ought to pay, he may recover the amount of such person. — Ticonic Bank v. Smiley, 27 Me. 225. It has been held, that a surety on the official bond of a sheriff, who has paid a judgment recovered against him for his principal’s default, in failing to return, or make the money on an execution, may recover the amount paid from the defendant in execution, on proof of an agreement between him and the plaintiff therein, that suit should be instituted against the plaintiff and his surety, and if the money could be made out of the latter, the defendant in execution should no longer be pursued. — Evans v. Bil-Ungslea, 32 Ala. 395. The principle on which the case last cited rests is, that where a person owes a debt, and by any trick, deceit or contrivance, causes another to pay it, the party paying it may maintain an action against such person for money paid, and the means used to bring about such payment are immaterial. — Cross v. Cheshire, 7 Exch. 43.
The following facts are undisputed: On June 7, 1887, *205Farabee, Hunter & Co. draw a sight draft on defendant, for three hundred and seventy dollars and eighty-six cents, being the price of a car-load of corn sold by them to defendant. The draft was forwarded for collection to the Birmingham National Bank. The plaintiff was in the employ of the bank, and had charge of its collections. The bank paid the entire amount of the draft to the holders, and took plaintiff’s notes for the amount, which, it is alleged, he failed to collect. The material fact controverted is, whether defendant paid the plaintiff the full amount of the draft, or whether plaintiff, by mistake, collected only fifty-two dollars and ninety cents as being its full amount, and thereupon stamped it paid, and delivered it to defendant. An action for money paid can not be maintained, unless there has been a payment of money, or its equivalent. If the notes of plaintiff, however, were accepted and taken by the bank as payment, and defendant’s liability, except as to plaintiff, was discharged, this is equivalent to a payment in money, and is such payment as will uphold an action for money paid.
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.