
    Henry Goddard versus Jeremiah S. Putnam & al. Exec’rs.
    If one party send a letter to their attorney, saying that, “ in our proposal to Mr. G. (the other party) we engaged to give up his note, he paying $175, as interest, and convoying or transferring/5 certain real estate and bank-stock, and, “if he complies with the above, you will please settle the business/5 and the other parly acknowledges on the letter the receipt of the' note, ho “ having complied with the requirements therein expressed/’ the paper containing the proposal, may be received in evidence, as explanatory of the actual agreement of the parties, in an after controversy between them.
    Where the interest due on a note was paid in cash, and certain real estate and bank stock were received, “to settle the principal of the note/5 and as an “ equivalent for the principal of the note/5 it toas held, that an overpayment of that note, in that manner, occasioned by a mistake in the computation of the sum due thereon, might be recovered back, in an action at law.
    Assumpsit against J. S. Putnam and Paul Langdon, as executors of the last will and testament of Elizabeth Sewall, to recover the sum of $250, alleged to have been paid by mistake in supposing that a note from the plaintiff to the testatrix was on interest from its date, when in fact it was not on interest until it became payable. The note was for $2212,25, payable to William Goddard and by him indorsed, “without recourse,” bearing date Nov. 5, 1835, and payable on March 24, 1837. There was nothing said in the note respecting interest. There were the following indorsements on the note. “ Oct. 17, 1837. Received $265,45 for two years interest on this note.” “ July 26, 1839. Received interest to Nov. 5, 1839, ($232,27.)” “May 10, 1841. Received note for inerest, $175.”
    The note was given up to the plaintiff on May 10, 1841, by direction of the executors, on his conveying to them certain real estate and transferring certain stock in a bank at Portland. At the trial before Whitbian C. J, the defendants introduced testimony tending to show, that the real estate and bank stock taken in payment thereof were of less value than the amount of the note. Letters from the plaintiff to Mrs. Sewall and to the executors, and from them to him, wer.e read. The letters and evidence are stated at length, but sufficient appears to understand the questions of law involved in the case, without copying the whole here.
    The report states,' “ that the defendants, by their counsel, contended that the house and lot conveyed to them was received by them in satisfaction of the amount due on the note of Nov. 5, 1835, at the time of the decease of the testatrix, and the note of $175, afterwards paid, was received for and in lieu of the interest which accrued subsequent to such decease— that the proposition in writing dated April 28, 1841, signed by one of the defendants and accepted by the plaintiff in writing under his hand, and carried into effect by the plaintiff May 10, 1841, is conclusive in this case as to what were the terms of the contract between the parties; that the letters of April 19, 1841, and April 26, 1841, though not objected to when introduced, which was before the letter from Paul Lang-don to Judge Preble had been read, are not admissible or competent in law to explain or vary the .terms of the proposition so made and accepted; and that neither are the letters of May 15 and May 25, 1841, competent or sufficient to modify or explain the aforesaid proposition of April 28, and acceptance thereof of May 10; and further, that the proposition on the part of the defendants being entire and as such carried into •effect by the plaintiff, if it were founded upon a mistake of the parties, such supposed mistake cannot be corrected in this form of action by the plaintiff, but that the contract must be set aside by a bill in equity so that the parties may be respectively restored to their former rights and condition. And the defendants’ counsel further contended that the payment of $265,45, Oct. 17, 1837, should be applied first to pay any interest actually accrued, and the balance towards the principal, and could not, nor any part of it, be recovered back as paid by mistake. And the defendants’ counsel moved the Court so to instruct the jury in these several particulars.”
    The presiding Judge declined so to instruct them; and instructed them, that they must determine from the evidence whether the $212,25 was for money actually received, or for , the interest which would accrue on a loan of $2000, being the residue of the note until the time when it would become payable. That if the latter, then they must ascertain from the evidence whether the $212,25 had or had not by mistake been treated as a part of the principal, and whether the plaintiff' and defendants had finally adjusted and settled the note upon the supposition that it was so. That if they should be satisfied in the affirmative, then the plain (iff, in the absence of any fraud practised on his part, was entitled to recover. , But if in the final adjustment nothing more had been exacted and received than the $2000, and interest thereon, then the plaintiff ought not to recover. That if on the other hand the mistake did exist,, yet if the circumstances attending the final adjustment were such as to authorize the belief that it was not the understanding of the parties, that the defendants were exacting payment of the note in full with interest on the $2212,25, and that in getting payment in the manner they did, they were merely compromising with the debtor, as if in doubtful or insolvent circumstances, and without receiving or calculating to receive the whole amount of $2212,25, with interest thereon, the plaintiff could not recover. Tire verdict was for the plaintiff for the sum of $212,25, with interest thereon.
    The letter referred to, as dated April 28, 1841, was introduced by the defendants, was addressed to the attorney of the executors in Portland, and was in these words : “ In our proposal to Mr. Goddard, we engaged to give up his note, he paying $175 as interest on his note, and conveying or transferring to the executors twelve shares in the Canal Bank, and house, land and appurtenances belonging to the same, which we viewed, with a good deed of the same. If he complies with the above, you will please settle the business, and oblige your ob’t serv’t, Paul Langdon.
    “April 28, 1811.”
    On the back of this letter, in the handwriting of the plaintiff, were these words.
    “Portland, May 10, 1841.
    “Received of Judge W. P. Preble the note within referred to, I having complied with the requirements therein expressed.
    “ Henry Goddard.”
    The defendants also moved that the verdict might be set aside and a new trial granted for the following reasons.
    1st. Because the verdict is against law upon the facts offered in evidence and proved in the case.
    2. Because the damages assessed by the jury áre excessive, and not warranted by the rules of law.
    3. Because the verdict is against evidence.
    4. Because the Court left the legal construction of written evidence of contract as matter of fact to the jury.
    5. Because the Court misdirected the jury in matter of law.
    6. Because the Court and jury by the direction and disposition of the cause have made a contract for the testatrix which she never entered into.
    7. Because the Court refused to direct the jury in matters of law as the defendants requested them to do.
    
      Preble, for the defendants,
    argued in support of the positions taken by him at the trial, and in his motion.
    
      W. P. Fessenden, for the plaintiff,
    said that if the verdict was for a sum greater than the amount received by mistake, that he would release it.
    The mistake was in casting too much interest on the note. This interest was paid in money, and paid and received as interest. The principal was paid in a mode satisfactory to the parties, though not in money. If the parties had not agreed to the payment of the money as interest, the law would so have appropriated it. Too much money was paid, and it may be recovered back in this action. Howe v. Bradley, 19 Maine R. 31; Cremer v. Higginson, 1 Mason, 307 ; 4 Cranch, 317 ; 6 Cranch, 8 ; 9 Wheat. 720.
    There was no compromise, or contract of compromise, between the parties. No deduction was made in the amount, and no mention of any deduction is made by either party in the whole transaction. The debt was agreed to be paid, and was paid in real estate and bank stock instead of money.
    But if it can be called a contract, we do not seek to dis-affirm it, but to confirm it. By mistake there was an overpayment, which we ask to recover back. Payment is the execution of the contract. This contract, however, was the original contract by the note. The mere agreement to take property in payment, instead of money, is not the contract on which the payment wras made.
    The letter of Langdon of April 28, 1841, refers to certain other letters, as containing the proposition. These are clearly admissible, and as much so, as a deed is, which is referred to in another for a description of the laud intended to be conveyed.
   The opinion of the Court w'as drawn up by

Shepley J.

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 value. 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.  