The Revised Statutes of 1857, (chap. 90, sect. 20,) provide that, if any person to whom a sum of money is tendered to redeem mortgaged lands, receives a larger sum than he is entitled to retain, he shall refund the excess. The plaintiffs tendered to the defendant a sum of money to redeem certain mortgaged lauds, protesting at the time that nothing was due, and notifying the defendant that the tender was made to save the risk of a forfeiture, and that an action would be commenced to recover back whatever sum he should receive, and that he could take at his peril so much of the sum tendered as he pleased. The sum tendered was $883,50, and the defendant took the whole of it. This action is to recover back this money, in whole or in part, upon the ground that nothing was due upon the mortgage; or, if anything was due, that the defendant took more than he is entitled to retain.
The case is this : — The plaintiffs offer to prove that one W. T. Pierce, the then owner of the note, to secure which, the mortgage was given, promised one of the plaintiffs, (Bragg,) that if he would purchase a certain demand against him, the note should be paid by an equal amount to be indorsed on the demand, and that Bragg, relying upon this promise, purchased the demand, and requested Pierce to have the indorsement made and the note given up; that Pierce said he would do so at some future time, but declined to do it then because he was sick; that Pierce afterwards, in violation of his promise, negotiated the note to the defendant, it then being over due. The plaintiffs claim that the agreement between Pierce and Bragg, and what was done in pursuance of it, was a payment or satisfaction of the note,— not an accord executory, but an accord executed; and the question is whether this view of such an agreement is correct. We think it is not.
The law is well settled, that an agreement or accord which is to operate as a satisfaction of an existing liability, must, before it can have that effect, be fully executed. If it is *68merely executory, (which it must be, so long as by the terms of the agreement something remains to be done in the future,) it will not be sufficient. Cushing v. Wyman, 44 Maine, 121, and authorities there cited.
The agreement between Pierce and Bragg was never fully executed. The note was not surrendered by Pierce, nor was the amount due upon it indorsed upon the demand purchased by Bragg. Both demands remained in full force, and in the possession of each party, neither being cancelled in whole or in part by the other. The note being transferred to the defendant before the agreement for an accord and sat-' isfaction was fully executed, (no notice to him of the agreement being shown) he was entitled to receive and retain the amount due upon it.
But the plaintiffs claim that, if the note was not satisfied, the defendant took a larger sum than was due upon it, and that they are entitled to recover back this excess, if no more. The note was for §586, and was dated April 10, 1856. Interest from that date to Aug. 19, 1864, when the tender was made and accepted, would amount to §293,88 ; which sum added to the principal would make the whole amount due, §879,88. The defendant took §883,50, and therefore has an excess in his hands of §3,62, which, by virtue of the statute already referred to, the plaintiffs are entitled to recover, — a sum in itself insignificant, but of some importance in its influence upon the question of costs. The action therefore must stand for trial.
Action to stand for trial.
Appleton, C. J., Cutting, Kent and ‘Daneorth, JJ., concurred. Barrows and Tapley, JJ., concurred in the result and expressed their views in the following opinion drawn by