Assuming the existence of a special agreement by which the plaintiff, when he delivered the property and rendered the services, agreed to receive the notes in question in part payment, still, on rescinding the contract ho might recover, as for goods sold, &c. the full amount agreed to he paid and which remained unsatisfied. And if the plaintiff had been defrauded in regard to the notes, he had an undoubted right to avoid his agreement to - receive them in part payment. (Willson v. Foree, 6 John. 110.) But in order to do this, he was bound to return or offer to return what he had received on the contract; and until this was done the agreement upon which the notes were transferred to him remained in full force. The contract although fraudulent was not ipso facto void] it was only voidable by a prompt return of whatever had been received upon it. Ill this case the plaintiff could not be allowed to retain the notes and the judgments rendered thereon, and at the same time recover the full price agreed to be paid for the property and services. The court in this part of the case did not proceed on the ground that the notes and judgments were of no value whatever ; and in holding and charging the jury that the agreement on which the notes had been received might be treated as a nullity, without making return of the notes or assigning the judgments, they committed an error. (Masson v. Bovet, 1 Denio, 69. See also Pierce v. Drake, 15 John. 475.)
Judgment reversed.