Robinson, J.
1. payment: voluntary: to release attachment: instruction. — I. The appellant complains of the refusal of the court to give to the jury two instructions asked by him, as follows : “1. That as to the cause of action set out in the first count of the petition you should find for the defendant, because, there is no evidence upon which a verdict can be found on said count in plaintiff’s favor. 2. As to the claim made by plaintiff in the first count of his petition, you are instructed that if you find from the evidence that plaintiff paid to the defendant, the five hundred and twenty-six dollars, [484]*484when the facts under which the same were claimed from him were known to him, then such payment was voluntary, and the plaintiff cannot recover the same back, unless you find that plaintiff paid said sum under compulsion which was illegal and unjust. • The suing out of the attachment, and the garnishment thereunder, * * * by defendant’s direction, is not such compulsion.” The appellant claims that these instructions were in accordance with the following proposition of law: “ To justify recovering back money paid, when all the facts were known to the party paying, such payment must, not have been simply an unwilling payment, but a compulsory one, and the compulsion must have been illegal, unjust and oppressive. ’ ’ This is substantially the law as. announced in Dickerman v. Lord, 21 Iowa, 342, and seems to be sustained by the authorities. Murphy v. Creighton, 45 Iowa, 183; Benson v. Monroe, 7 Cush. 131; 2 Greenl. Ev. sec. 123 ; Custin v. City of Viroqua,. 67 Wis. 318; Mays v. Cincinnati, 1 Ohio St. 269.
But we do not think the instructions asked should have been given. They ignored the fact that the petition alleged, and some of the evidence tended to prove, that defendant agreed, as a part of the consideration for the payment of the money to him, to repay it if plaintiff could show that he was not indebted to defendant. In fact, the latter admits substantially that this was the case. It must be conceded that, so far as appellee was-concerned, he knew all the facts as to his liability when he paid the money. He was charged with having wrongfully taken goods from the store and money from the till of defendant. He knew whether he had so taken them or not. Appellee urges that he did not know the-facts upon which appellant’s demand was based when the payment was made; but that only amounts to a. claim that he did not know the evidence by which appellant could sustain his demand. Having paid the money with full knowledge of the facts in regard to his alleged liability, we think the appellee cannot recover on the-first count of his petition without showing that he did not owe to defendant the money paid him. The release [485]*485of the money garnished, the dismissal of the action and the payment to appellant of the money claimed, were a sufficient consideration for the agreement to repay the money if it was shown not to be due. Hence the claim made on the part of the appellant, that the evidence shows that the appellee could have met all liabilities on the part of himself and wife by means of property not held by attachment, is immaterial.
2. _: _: _: promise to repay: contruction. II. It is insisted by appellant that the agreement to repay the money paid by appellee required, as a con-dition precedent to the commencement of suit therefor, that he show that he did not Qwe ^ wpen paid; that until such fact was shown nothing was due from appellant. We do not think this is a fair construction of the agreement. This did not, in terms, provide that nothing should be due from appellant, and that suit should not be commenced against him, until after it should be shown that he was not entitled to the money. The language of the agreement, as set out in the petition, is as follows: “That in order to release said property this plaintiff, under protest, and denying any indebtedness on his part to the defendant, and upon the express verbal promise of the defendant H. T. Lauderb augh, if plaintiff could show that he was not indebted to him, to repay said money to plaintiff, plaintiff paid over to defendant the sum of five hundred and twenty-six dollars.” The defendant testified that it was his idea, all the time the negotiations for a settlement of the attachment case were being had, that if he was not entitled to the money he would pay it back at any time. It will not be presumed that the parties to the agreement intended that appellant could keep money which did not belong to him, without liability, until appellee could satisfy appellant that the latter was not entitled to the money. The facts of the case are against such a presumption. Appellee had been employed by appellant as a clerk, and if money and property had been taken, as claimed by appellant, most of it must have been taken during that time. Appellee could only prove his innocence by his own [486]*486statement, which he had made before the agreement was entered into, or by showing that the money and property had been taken by others who had access to it, or by showing that appellant had lost neither money nor other property. Proof of the second proposition could not, in the nature of the case, be well made, and the evidence as to the third was, or should have been, under the special control of appellant. The language of the agreement may properly be construed, in view of all the circumstances, to mean that, if appellee did not in fact owe the money paid, then the fact of payment would give to appellant no right to the money. Any other construction would make the agreement to repay practically inoperative, and that fact must have been known to and considered by the parties when they entered into it. If the money was not due from appellee, then it was wrongfully exacted. The stipulation for repayment was not designed for the protection of appellant, but for the benefit of appellee, and did not alter the character of appellant’s acts.
3_:_: recovery: instruction. III. The paragraph of the charge to the jury, numbered 2 1-2, is as follows: “If you should find that plaintiff paid the five hundred and twenty-six dollars to Lauderbaugh voluntarily, that is, if he paid the said sum while at the time having other means of immediate relief, and without fraud or compulsion, or extortion, — then such payment was voluntarily made, and cannot be recovered back in this action, even though Lauderbaugh promised to repay said sum in case plaintiff herein should satisfy Lauderbaugh that he had not taken or converted said money ; and, in determining whether plaintiff did have other means of immediaté relief, you should take into consideration the fact, if it be a fact, that plaintiff had, at the time he made said payments, other property than that held by the garnishment, by means of which he could have carried on his business and met his engagements.” Appellant complains of this portion of the charge on the ground that it submitted to the jury matters not in issue. We think the complaint is well [487]*487founded. Neither fraud nor extortion is alleged in the petition. The first count is based upon the agreement to repay the money in controversy. It charges that the demand of appellant, on account of which it was paid, was “illegal and unjust; ” but the same might be said of any claim made in good faith, but under a mistake of fact, for money not due. The evidence of plaintiff shows that at the time of the attachment he had ample means of raising money to meet existing obligations.
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Robinson, J.
1. payment: voluntary: to release attachment: instruction. — I. The appellant complains of the refusal of the court to give to the jury two instructions asked by him, as follows : “1. That as to the cause of action set out in the first count of the petition you should find for the defendant, because, there is no evidence upon which a verdict can be found on said count in plaintiff’s favor. 2. As to the claim made by plaintiff in the first count of his petition, you are instructed that if you find from the evidence that plaintiff paid to the defendant, the five hundred and twenty-six dollars, [484]*484when the facts under which the same were claimed from him were known to him, then such payment was voluntary, and the plaintiff cannot recover the same back, unless you find that plaintiff paid said sum under compulsion which was illegal and unjust. • The suing out of the attachment, and the garnishment thereunder, * * * by defendant’s direction, is not such compulsion.” The appellant claims that these instructions were in accordance with the following proposition of law: “ To justify recovering back money paid, when all the facts were known to the party paying, such payment must, not have been simply an unwilling payment, but a compulsory one, and the compulsion must have been illegal, unjust and oppressive. ’ ’ This is substantially the law as. announced in Dickerman v. Lord, 21 Iowa, 342, and seems to be sustained by the authorities. Murphy v. Creighton, 45 Iowa, 183; Benson v. Monroe, 7 Cush. 131; 2 Greenl. Ev. sec. 123 ; Custin v. City of Viroqua,. 67 Wis. 318; Mays v. Cincinnati, 1 Ohio St. 269.
But we do not think the instructions asked should have been given. They ignored the fact that the petition alleged, and some of the evidence tended to prove, that defendant agreed, as a part of the consideration for the payment of the money to him, to repay it if plaintiff could show that he was not indebted to defendant. In fact, the latter admits substantially that this was the case. It must be conceded that, so far as appellee was-concerned, he knew all the facts as to his liability when he paid the money. He was charged with having wrongfully taken goods from the store and money from the till of defendant. He knew whether he had so taken them or not. Appellee urges that he did not know the-facts upon which appellant’s demand was based when the payment was made; but that only amounts to a. claim that he did not know the evidence by which appellant could sustain his demand. Having paid the money with full knowledge of the facts in regard to his alleged liability, we think the appellee cannot recover on the-first count of his petition without showing that he did not owe to defendant the money paid him. The release [485]*485of the money garnished, the dismissal of the action and the payment to appellant of the money claimed, were a sufficient consideration for the agreement to repay the money if it was shown not to be due. Hence the claim made on the part of the appellant, that the evidence shows that the appellee could have met all liabilities on the part of himself and wife by means of property not held by attachment, is immaterial.
2. _: _: _: promise to repay: contruction. II. It is insisted by appellant that the agreement to repay the money paid by appellee required, as a con-dition precedent to the commencement of suit therefor, that he show that he did not Qwe ^ wpen paid; that until such fact was shown nothing was due from appellant. We do not think this is a fair construction of the agreement. This did not, in terms, provide that nothing should be due from appellant, and that suit should not be commenced against him, until after it should be shown that he was not entitled to the money. The language of the agreement, as set out in the petition, is as follows: “That in order to release said property this plaintiff, under protest, and denying any indebtedness on his part to the defendant, and upon the express verbal promise of the defendant H. T. Lauderb augh, if plaintiff could show that he was not indebted to him, to repay said money to plaintiff, plaintiff paid over to defendant the sum of five hundred and twenty-six dollars.” The defendant testified that it was his idea, all the time the negotiations for a settlement of the attachment case were being had, that if he was not entitled to the money he would pay it back at any time. It will not be presumed that the parties to the agreement intended that appellant could keep money which did not belong to him, without liability, until appellee could satisfy appellant that the latter was not entitled to the money. The facts of the case are against such a presumption. Appellee had been employed by appellant as a clerk, and if money and property had been taken, as claimed by appellant, most of it must have been taken during that time. Appellee could only prove his innocence by his own [486]*486statement, which he had made before the agreement was entered into, or by showing that the money and property had been taken by others who had access to it, or by showing that appellant had lost neither money nor other property. Proof of the second proposition could not, in the nature of the case, be well made, and the evidence as to the third was, or should have been, under the special control of appellant. The language of the agreement may properly be construed, in view of all the circumstances, to mean that, if appellee did not in fact owe the money paid, then the fact of payment would give to appellant no right to the money. Any other construction would make the agreement to repay practically inoperative, and that fact must have been known to and considered by the parties when they entered into it. If the money was not due from appellee, then it was wrongfully exacted. The stipulation for repayment was not designed for the protection of appellant, but for the benefit of appellee, and did not alter the character of appellant’s acts.
3_:_: recovery: instruction. III. The paragraph of the charge to the jury, numbered 2 1-2, is as follows: “If you should find that plaintiff paid the five hundred and twenty-six dollars to Lauderbaugh voluntarily, that is, if he paid the said sum while at the time having other means of immediate relief, and without fraud or compulsion, or extortion, — then such payment was voluntarily made, and cannot be recovered back in this action, even though Lauderbaugh promised to repay said sum in case plaintiff herein should satisfy Lauderbaugh that he had not taken or converted said money ; and, in determining whether plaintiff did have other means of immediaté relief, you should take into consideration the fact, if it be a fact, that plaintiff had, at the time he made said payments, other property than that held by the garnishment, by means of which he could have carried on his business and met his engagements.” Appellant complains of this portion of the charge on the ground that it submitted to the jury matters not in issue. We think the complaint is well [487]*487founded. Neither fraud nor extortion is alleged in the petition. The first count is based upon the agreement to repay the money in controversy. It charges that the demand of appellant, on account of which it was paid, was “illegal and unjust; ” but the same might be said of any claim made in good faith, but under a mistake of fact, for money not due. The evidence of plaintiff shows that at the time of the attachment he had ample means of raising money to meet existing obligations. Hence it may fairly be inferred that the jury found that appellant obtained the payment of the money by fraud; compulsion or extortion. The paragraph in question was not only erroneous in the particulars specified by appellant, but it is in conflict with the views we have expressed as to the effect of the agreement.
the same. IY. Complaint is made of the next paragraph of the charge. That also submitted to the jury the questions of fraud and extortion, and to that extent, at least, was erroneous, for reasons already stated. The petition does not
charge, nor does the evidence tend to show, that Lauderbaugh knew that the claim on which his action was brought was not well founded. On the contrary, the evidence tends strongly to show that he acted in good faith throughout the entire transaction. He did not deceive appellee, for the evident reason that the latter had greater knowledge of the facts upon which the claim was founded than any one else could have. The allegations of the second count, that the writ of attachment-was wrongfully, wilfully and maliciously sued out, are made to depend upon the further allegation, that when it was sued out the defendant therein was not about to dispose of his property with intent to defraud his creditors, and the plaintiff therein had no reasonable cause to believe that he was.
4. Evidence: errors cured by verdict. Y. Counsel discuss various rulings of the court in admitting and excluding evidence offered on the issues raised on the second count of the petition. The verdict of the jury necessarily shows that the writ was wrongfully issued, but a [488]*488special finding sliows tliat it was not sued out maliciously. The judgment rendered included but nominal damages for the cause of action alleged in the second count. Hence it is evident that the rulings, if erroneous, were not prejudicial; and they are not likely to be repeated on another trial; hence need not be further considered.
5. Attachment: wrongful: action on bond: attorney's fees. VI. It is insisted by appellant that the court erred in rendering judgment against him for an attorney’s fee of seventy-five dollars. It was held in Vorse v. Phillips, 37 Iowa, 431, that such . fee could not be recovered m an action on an attachment bond. But that case was decided under the provisions of the Revision of 1860. Section 2961 of the Code expressly authorizes such a recovery. Weller v. Hawes, 49 Iowa, 45. Because of the errors pointed out, the judgment of the district court is Reversed.