majority">Walton, J.

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 byTapley, J.

I concur in so much of the opinion as concludes in ordering the action to stand for trial. The case, *69as now presented, I regard as exhibiting strong equitable claims, and one which ought to be sustained if it can be upon legal grounds. The proof offered, we must consider actually existing; if true, it exhibits on the part of Waldo T. Pierce gross fraud upon this plaintiff, and such as finds no support in courts of law or equity.

The case finds that the note and mortgage were in the hands of Waldo T. Pierce " till after it was due,” and was then negotiated to the defendant, not in the usual course of trade, but as collateral security.

The defendant, then, can stand in no better position than Waldo T. Pierce would, if he was living and a party to the suit.

Waldo T. Pierce agrees with Bragg, as an inducement to him to enter into the purchase, Kt‘--at he would of set and take in payment of the mortgage notes given, any demands which Bragg could buy against him.” Bragg found an opportunity to purchase a demand and went and named it to Pierce, " who assented to the purchase, and promised, that the notes should be paid by an equal amount to be indorsed on said demand.” In pursuance of this arrangement Bragg made the purchase, and brought the demand and tendered it to Pierce. This, as between Bragg and Pierce, operated as a payment to the amount of the demand purchased, and, in a' suit between them, would have been so treated.

Payment was in no wise dependent upon the indorsement of the payment, upon the note, nor upon the surrender of the note.

Neither the indorsement or the surrender makes the payment. They are the mere evidence of payment.

The indorsement or surrender, if made, are made because a payment has already taken place. When Bragg paid for the demand be did it in pursuance of the assent and direction of Piercethat direction was to buy the demand, and " the note should be paid by an equal amountThe parties then agreed to the application. This proceeding relates to *70a particular demand and stands upon tbe agreement made with reference to that, which is substantially, " purchase the demand and the notes shall be paid by an equal amount.”

If this were not sufficient, it appears to me there has been a clear and distinct recognition of it as a payment subsequent to its purchase.

Bragg having purchased the demand in accordance’ with this agreement, goes with it to Pierce and requests the note to be given up., Pierce does not deny it is a payment, but distinctly recoguizes it as such, by saying he will give up the note, but defers doing it then on account of his illness. He deferred giving up the note, not deferred allowing it as payment. This he distinctly allowed by saying he would give up the note. There was no dispute or difference of opinion between the parties as to the effect of that purchase on the note. . Both seem to have understood it as a payment of so much. Whether its amount was sufficient to extinguish the note, might have required calculation, which, on account of the illness pf Pierce, was deferred.

Here was a distinct application of payment by Bragg, and assent and recognition by Pierce, and neither could change it afterward without the consent of the other, and, if Waldo T. Pierce had brought an action upon his note, upon the facts here reported, there is no principle of law or equity, that would have allowed him to’ avoid this payment, made by his express assent and procurement. It should be borne in mind that it was all done at his suggestion, and by his procurement. This plaintiff would not have parted with his property but upon the condition it should operate as payment. In giving construction to the proceedings, if they are of doubtful import, such construction should be given as best comports with justice to both parties, if it can consistently be done. As before remarked, this defendant can stand in no better position than his assignor, having taken the note when overdue.

The case is one proper to be submitted to a jury under proper instructions, and, should the evidence appear as here *71presented, they would be authorized to find a payment, equal in amount to the demand purchased under the second agreement, and tendered immediately after its purchase in fulfillment of the agreement.

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