The opinion of the Court w'as drawn up by
Shepley J.
— The suit is brought to recover back a sum of money alleged to have been paid under a mistake of facts. The case is presented on a report of the testimony and proceedings at the trial; and on a motion for a new trial. The alleged mistake arose out of the payment of a promissory note, bearing date on November 5, 1835, made by the plaintiff, and payable to William Goddard or order on March 24, 1837, for the sum of $2212,25. It was indorsed to Elizabeth Sewall, deceased, whose executors are the defendants. The testimony tending to prove, that there was a mistake, arises wholly out of written documents. That note was paid to the attorney of the executors on May 10, 1841, by the conveyance of certain property, and by a new note for the interest. And it is contended, that the property was not received in payment of any definite sum of money then estimated to be due; but was received by way of compromise for whatever might be due upon the note exclusive of the sum paid as interest. And that [368]*368the letter from one of the executors to their attorney, bearing date on April 28, 1841, wish the receipt of the plaintiff upon it, is conclusive evidence, that it was so received. The object of that letter was not to make proposals, which being accepted would constitute the agreement between the parties. It was to communicate the terms of settlement and payment before agreed upon, and to authorize their attorney to settle the note upon those terms. For this purpose it was necessary, that the acts to be performed should be clearly stated. But it was not necessary, that the particular terms of the agreement, which led to the performance of those acts should be. If there were error or obscurity in reciting the terms of the agreement, that would seem to be properly corrected or explained by a reference to the proposal itself, referred to in the same letter. The receipt of the plaintiff upon that letter states, that he has “ complied with the requirements therein expressed.” Or in other words, that he has performed the acts required of him. It does not declare, that the agreement was therein correctly and fully recited. Such being the object of that letter, and “ our proposal to Mr. Goddard,” being referred to in it as the foundation of the recited engagement, the document thus referred to may, upon a strict application of the rules of evidence, be received as explanatory of the actual agreement between the parties. Upon looking into the documents there can be no doubt, to which one of them the reference was made. It was to the letter from one of the executors to the plaintiff, bearing date on April 26, 1841. In that letter the executor states, “ we are willing to settle the principal of the note upon the terms proposed in your communication of the 17th ;” but thought, “ as the income was an entirely separate business, we being held to pay to the devisees all the income arising from the property of the estate, should request an extra consideration for that; for we do not think the property, you propose to convey, is more than equivalent for the principal of the note; nevertheless as you, so are we, desirous of bringing this to a close, we have concluded to accede to your proposal in your explanatory communication of the 20th ; namely to con[369]*369vey to us as executors by a warrantee deed that messuagé, land, house and tenement, which we examined, transfer and convey to us twelve shares in the capital stock of the Canal bank, and the interest, amounting as you say to $]89, now due upon the note, but of which you are only willing to pay $160. You must remember, that the devisees are entitled to all their interest in the property, and while Capt. Langdon is willing both as devisee and executor to relinquish a part, Miss Eliza will expect the whole, therefore $175 is the amount of interest, that should be paid to them either by note or in cash, as is most agreeable to yourself.” This original proposal referred to, states most clearly, that the estate and bank shares were to be received “ to settle the principal of the note” and not by way of compromise, or for an uncertain amount, but as, “ equivalent for the principal of the note.” There was a compromise or relinquishment of $14 of the interest stated to be due. But that interest is stated to be applicable to a different purpose from that of the principal, and it therefore constituted a separate subject for consideration and arrangement. It is said, that the executor by the use of the word “ principal,” did not mean the sum for which the note was made, but the amount due upon it at the time of the decease of the testatrix. If this be so, it cannot be material in this case, for at the time when that letter was written, there was no interest due and unpaid, which had accrued before her decease. The principal, which was paid, was therefore the sum for which the note was made. Was that whole principal actually due? The documents shew, that the loan was $2000, and that interest, at a rate of more than six per cent, from the date of the note to its maturity, was included in it as a part of the principal. The note was erroneously regarded as bearing interest from its date, and the interest was paid and received accordingly. The amount paid and indorsed as interest, when no such amount of interest was due, could not be recovered back as an over-payment of interest by mistake, while the note remained unpaid, for the law would apply it in payment of a portion of the principal. And the result is, that by such an [370]*370application of it, the whole principal was not due at the time when the note was paid. The note having been paid, and the payment received upon the belief, that the whole principal was ‘ due on November 5, 1839, when in fact it was not; the mistake is clearly proved. And the amount of the over-payment becomes certain, requiring only a calculation of the amount due on that day, which being deducted from the amount, for which the note was made, show's the amount of the over-payment.
It is contended, that this sum should not be restored because payment w'as made in property, which was not then worth in cash so much as the amount really due upon the note. When a creditor consents to receive payment in specific property considered at the time as equivalent to the amount for which it is received, he cannot upon a discovery of an error in estimating the amount due, insist upon a new valuation of the property. In this case the executors appear to have examined the estate, and to have had an opportunity to ascertain the market value of the shares in the bank: and they considered the property equivalent to the amount of the principal of the note. It is doubtless true, that they came to that conclusion, because they found it difficult or impossible to obtain payment in cash; but it is not perceived, that the legal rights of the parties can be thereby varied. The judicial tribunals cannot correct errors in judgment; and yet they are required to aid in the correction of mistakes arising from' a misapprehension of the true state of facts.
It is also contended, that this is not the proper remedy; that relief should be granted only in equity by setting aside the whole settlement and restoring the parties mutually to their former rights. Such would be the proper course, if the settlement had been produced by any misrepresentation or fraud. Chase v. Garvin, 19 Maine R. 211. But such a position is excluded by the finding of the jury.
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The opinion of the Court w'as drawn up by
Shepley J.
— The suit is brought to recover back a sum of money alleged to have been paid under a mistake of facts. The case is presented on a report of the testimony and proceedings at the trial; and on a motion for a new trial. The alleged mistake arose out of the payment of a promissory note, bearing date on November 5, 1835, made by the plaintiff, and payable to William Goddard or order on March 24, 1837, for the sum of $2212,25. It was indorsed to Elizabeth Sewall, deceased, whose executors are the defendants. The testimony tending to prove, that there was a mistake, arises wholly out of written documents. That note was paid to the attorney of the executors on May 10, 1841, by the conveyance of certain property, and by a new note for the interest. And it is contended, that the property was not received in payment of any definite sum of money then estimated to be due; but was received by way of compromise for whatever might be due upon the note exclusive of the sum paid as interest. And that [368]*368the letter from one of the executors to their attorney, bearing date on April 28, 1841, wish the receipt of the plaintiff upon it, is conclusive evidence, that it was so received. The object of that letter was not to make proposals, which being accepted would constitute the agreement between the parties. It was to communicate the terms of settlement and payment before agreed upon, and to authorize their attorney to settle the note upon those terms. For this purpose it was necessary, that the acts to be performed should be clearly stated. But it was not necessary, that the particular terms of the agreement, which led to the performance of those acts should be. If there were error or obscurity in reciting the terms of the agreement, that would seem to be properly corrected or explained by a reference to the proposal itself, referred to in the same letter. The receipt of the plaintiff upon that letter states, that he has “ complied with the requirements therein expressed.” Or in other words, that he has performed the acts required of him. It does not declare, that the agreement was therein correctly and fully recited. Such being the object of that letter, and “ our proposal to Mr. Goddard,” being referred to in it as the foundation of the recited engagement, the document thus referred to may, upon a strict application of the rules of evidence, be received as explanatory of the actual agreement between the parties. Upon looking into the documents there can be no doubt, to which one of them the reference was made. It was to the letter from one of the executors to the plaintiff, bearing date on April 26, 1841. In that letter the executor states, “ we are willing to settle the principal of the note upon the terms proposed in your communication of the 17th ;” but thought, “ as the income was an entirely separate business, we being held to pay to the devisees all the income arising from the property of the estate, should request an extra consideration for that; for we do not think the property, you propose to convey, is more than equivalent for the principal of the note; nevertheless as you, so are we, desirous of bringing this to a close, we have concluded to accede to your proposal in your explanatory communication of the 20th ; namely to con[369]*369vey to us as executors by a warrantee deed that messuagé, land, house and tenement, which we examined, transfer and convey to us twelve shares in the capital stock of the Canal bank, and the interest, amounting as you say to $]89, now due upon the note, but of which you are only willing to pay $160. You must remember, that the devisees are entitled to all their interest in the property, and while Capt. Langdon is willing both as devisee and executor to relinquish a part, Miss Eliza will expect the whole, therefore $175 is the amount of interest, that should be paid to them either by note or in cash, as is most agreeable to yourself.” This original proposal referred to, states most clearly, that the estate and bank shares were to be received “ to settle the principal of the note” and not by way of compromise, or for an uncertain amount, but as, “ equivalent for the principal of the note.” There was a compromise or relinquishment of $14 of the interest stated to be due. But that interest is stated to be applicable to a different purpose from that of the principal, and it therefore constituted a separate subject for consideration and arrangement. It is said, that the executor by the use of the word “ principal,” did not mean the sum for which the note was made, but the amount due upon it at the time of the decease of the testatrix. If this be so, it cannot be material in this case, for at the time when that letter was written, there was no interest due and unpaid, which had accrued before her decease. The principal, which was paid, was therefore the sum for which the note was made. Was that whole principal actually due? The documents shew, that the loan was $2000, and that interest, at a rate of more than six per cent, from the date of the note to its maturity, was included in it as a part of the principal. The note was erroneously regarded as bearing interest from its date, and the interest was paid and received accordingly. The amount paid and indorsed as interest, when no such amount of interest was due, could not be recovered back as an over-payment of interest by mistake, while the note remained unpaid, for the law would apply it in payment of a portion of the principal. And the result is, that by such an [370]*370application of it, the whole principal was not due at the time when the note was paid. The note having been paid, and the payment received upon the belief, that the whole principal was ‘ due on November 5, 1839, when in fact it was not; the mistake is clearly proved. And the amount of the over-payment becomes certain, requiring only a calculation of the amount due on that day, which being deducted from the amount, for which the note was made, show's the amount of the over-payment.
It is contended, that this sum should not be restored because payment w'as made in property, which was not then worth in cash so much as the amount really due upon the note. When a creditor consents to receive payment in specific property considered at the time as equivalent to the amount for which it is received, he cannot upon a discovery of an error in estimating the amount due, insist upon a new valuation of the property. In this case the executors appear to have examined the estate, and to have had an opportunity to ascertain the market value of the shares in the bank: and they considered the property equivalent to the amount of the principal of the note. It is doubtless true, that they came to that conclusion, because they found it difficult or impossible to obtain payment in cash; but it is not perceived, that the legal rights of the parties can be thereby varied. The judicial tribunals cannot correct errors in judgment; and yet they are required to aid in the correction of mistakes arising from' a misapprehension of the true state of facts.
It is also contended, that this is not the proper remedy; that relief should be granted only in equity by setting aside the whole settlement and restoring the parties mutually to their former rights. Such would be the proper course, if the settlement had been produced by any misrepresentation or fraud. Chase v. Garvin, 19 Maine R. 211. But such a position is excluded by the finding of the jury. It is also said, that if the settlement is sustained, and the plaintiff recovers against the executors, they will bo chargeable with the whole principal of the note, although the property received may be of much less [371]*371value. The amount of any judgment, which the plaintiff may recover, would seem to be a proper charge against the estate; and their position, so far as it respects the mode of payment of the note, would not be varied by these proceedings. It will be perceived upon a calculation on the principles before stated, that the verdict of the jury was for too large an amount; and it must be set aside and a new trial granted, unless the plaintiff will enter a remittitur for all over the amount of the errors, with interest on it from the time, when a demand was made upon the executors to have it corrected.