
    Harlow Scovil, Appellant, v. Guevera Wait, Respondent.
    (Submitted March 15, 1873;
    decided June term, 1873.)
    This action was brought to recover a balance of $92.62, due on the purchase of a buggy by defendant of plaintiff. Defendant pleaded payment.
    The buggy was sold for $167; plaintiff received in payment a note of one S. D. Sturtevant for $92.60, not then due, and the balance in money. Sturtevant was insolvent at the time, to the knowledge of defendant, who fraudulently induced plaintiff to receive the note under the belief that it was good. The note not being paid at maturity, plaintiff tendered it to defendant and demanded the buggy or the balance of the purchase taoney. Defendant refused to comply with either demand. After the cause was at issue, Sturtevant > paid the note in full to plaintiff, who accepted the money and delivered up the note. This. payment was made at the suggestion of defendant. Upon the trial plaintiff brought into court and left with the referee, for defendant, the amount received on the note. The referee gave judgment for the amount of the note and interest. Held, error; that the tender of the note simply was not a rescission of the contract; also, that the receipt, of payment upon the note destroyed the effect of the tender, assuming it to have been sufficient; that the attempt to substitute an equivalent for the note upon the trial was futile.
    
      F. W. Hubbard for the appellant.
    
      Starbuck & Sawyer for the respondent.
   Lott, Ch. C.,

reads for affirmance, and for judgment absolute against plaintiff.

All concur.

Order affirmed, and judgment accordingly.  