It is admitted by the parties, that Francis McQuaid, in giving his own note in exchange for and payment of the note declared on, acted as the agent of his brother, the defendant in this case. The transaction is therefore to be regarded in the same light as if it had taken place directly between the parties to this suit. The verdict of the jury has established the further fact, that the note signed by the defendant was given up, and the note of Francis McQuaid taken in its stead by the plaintiff, under a mistake, and that he intended only to renew the defendant’s note, and not to receive the note of a third person, and thereby to discharge the defendant from liability. Upon these facts, it seems to us quite clear that no valid contract was entered into between the parties, by which the note in suit has been paid. The essential element of the assent of both parties to the agree ment, without which it can have no validity, is wanting. The plaintiff held a valid note against the defendant, which has never been paid or surrendered in the manner and for the consideration agreed to by him. The case is analogous to money paid under a mistake of facts, or the payment of a note with counterfeit bills, when the party making the payment is innocent of any fraud. In the former case, an action for money had and received will lie to recover the money back; in the latter to recover the balance due on the note, which has been given up as paid. Young v. Adams, 6 Mass *354182,190. Besides: the taking of the note of a third party for the note in suit was only primd facie evidence of payment, and it being proved that it was received through mistake, and that the plaintiff never agreed to take the note of such third person in discharge of the note due from the defendant, the presumption of payment is rebutted. Ramsdell v. Soule, 12 Pick. 126 ; French v. Price, 24 Pick. 13, 21. It is not a valid answer to the plaintiff’s claim that the mistake in taking the note arose from the negligence or carelessness of the plaintiff, ín cases where a party has a legal cause of action, founded upon his own mistake, it is wholly immaterial to what cause the error was attributable, if the defendant suffers no damage from it. The only question is, whether it was really made, and if the position of the defendant is not materially changed thereby, and he has suffered.no damage in consequence of it, the legal right of the party to maintain his action, cannot be defeated by proof that the mistake arose from his own loches. Lucas v. Worswick, 1 Moo. & Rob. 293; Kelly v. Solari, 9 Mees. & Welsb. 54; Bell v. Gardiner, 4 Man. & Grang. 11; Marriott v. Hampton, 2 Smith’s Lead. Cas. 243, 244 note.

The surrender of the note of the third person by the plaintiff at the trial was, under the circumstances of the case, seasonable, and the instructions given to the jury on this point were correct and in conformity with the authorities. Thurston v. Blanchard, 22 Pick. 18; Shaw v. Methodist Society, 8 Met. 223, 227. It did not appear that any other person had any right or claim to the note except the defendant, and the jury have found that he had sustained no loss or damage by reason of its not having been given up to him before the trial.

Exceptions overruled.