The proposition of the charge refused is this — that if one pay money to another under the belief that it is in compromise of a debt, the creditor, by retaining it after notice of the erroneous belief under which the payment was made, and an offer of rescission by the party paying, affirms the correctness of the party’s belief, and is precluded from the collection of his debt. Such, we do not think is the law. If the money was in fact accepted as a compromise of the debt, the party had his opportunity to present that as a defense. If he committed a mistake and acted upon an erroneous belief, it would be most unreasonable to convert the retention of the money by the plaintiff, which may be really his due, into a confirmation of such erroneous belief. If the defendant did not owe to the plaintiff the money which he paid, he might have had action to recover it back, but we can see no reason or principle which would sanction the position taken by counsel, that a creditor, by retaining money paid to him under an incorrect belief, commits himself to the correctness of that belief. If the money was due to him, he had a right to retain it, notwithstanding the defendant paid under a mistake.
The decisions of this court are to the effect, that a plaintiff, after collecting money on his judgment, will not be permitted to assign error until he makes restoration. There is an inconsistency between the prosecution of an appeal from a judgment, and the enforcement of the collection of the same judgment. There is no inconsistency between the retaining of money paid on a note, and the collection of the balance due.
Affirmed.