Where there has been a common mistake as to some essential fact forming an inducement to a contract, that is, where the circumstances justify the inference that it would not have been made if the truth had been known, the contract is voidable. Benj. Sa. (4th Am. ed.), s. 606; Poll. Contr. 436, 442; Cox v. Prentice, 3 M. S. 344; Emmerson's Case, L. R. 1 Ch. 433 — S.C., L. R. 2 Eq. 391 — S.C., 12 Jur. N. S. 592; Fogg v. Sawyer, 9 N.H. 365; Nelson v. Hall, 60 N. H, 274. The plaintiff was not bound to return the good notes, as he would not have been bound to return all the money he received if he had been paid in bank notes, good and bad. Martin v. Roberts, 5 Cush. 126. The worthless note being tendered at the trial, and it appearing that the defendant had suffered no injury from the neglect to return it sooner, his rights were fully protected, and the return was seasonably made. Shaw v. Society, 8 Met. 223, 227; Bridge v. Batchelder, 9 Allen 394 Whitton v. Mayo,114 Mass. 179; Estabrook v. Swett, 116 Mass. 303. When the distinction between the law of substantive rights and the law of remedial procedure was not maintained, undue importance was sometimes attached to a return of such notes before suit. Evans v. Gale,18 N.H. 397; Cook v. Gilman, 34 N.H. 556, 560. In an action at law, as well as on a bill in equity, justice may require the prevailing party to do many things before taking judgment. Colby v. Reed, 99 U.S. 560, 566; Stone v. Clough, 41 N.H. 290, 300; Towle v. Lawrence, 59 N.H. 501; Fletcher v. Chamberlin, 61 N.H. 438,495, 496; Roberts v. Peavey, 27 N.H. 477, 502; Holt v. Rice, 54 N.H. 398; Hobbs v. Hobbs, 58 N.H. 81; Moore v. Kidder, 58 N.H. 115,116; Taft v. Barrett, 58 N.H. 447, 450; Marston v. Stickney, 58 N.H. 609,611; Morrill v. Hovey, 59 N.H. 108; Northumberland v. Cobleigh,59 N.H. 250, 256; Kelley v. Kennard, 60 N.H. 1, 6, 7. By delivering the worthless note to the clerk for the defendant, the plaintiff will have done his whole duty. When that is done, there will be
Judgment for the plaintiff.
BLODGETT, J., did not sit: the others concurred. *Page 673