¶1The plaintiff seeks in this action, which is assumpsit for money had and received, to recover a sum of money due upon a note for $48.72, payable to the plaintiff, or order, on demand, with interest from the second day of April, 1842. He also seeks to recover back $7.08, which he paid the defendant for the difference between the first named note aud the note of Adams Moore, which was unavailable in his hands, and not paid according to the stipulation of the defendant. In other words, he seeks to recover $7.08, which he paid the defendant in consideration of an undertaking which the defendant did not keep and perform.
¶2In the first place, the authorities are clear-that a promissory note is evidence under a count for money had and received.
¶3It is also a settled maxim that one who has paid money in advance upon a contract which the other party refuses to keep, may at his option sue upon the contract specially, or consider it rescinded, and recover back the money he has paid. Stevens v. Cushing, 1 N. H. 18; Danforth v. Dewey, 3 N. H. 79 ; Luey v. Bundy, 9 N. H. 298.
¶4It would, therefore, seem that the evidence was applicable to the count.
¶5As to the effect of receiving the note of Moore, in exchange for that of the defendant which was delivered up to him, it is well settled that the act of itself does not constitute a payment of the defendant’s note; but that the burden is upon Mm to show that the parties intended that the transaction should have that effect. Holmes v. D’ Camp, 2 Johns. 33 ; Jaffrey v. Cornish, 10 N. H. 505.
¶6All, however, that he is required to prove is, that the parties to the act intended by it that the note of Moore should be given and received in payment of the note of the defendant. The court, therefore, erred in denying the defendant’s motion for specific instructions to the jury to that effect.
¶7*107If the note of Moore was not given and received as payment of that of the defendant, the latter remained unpaid, and evidence of money had and received by the defendant for the plaintiffs’ use. There was, therefore, no need that the note of Moore should be re-delivered to the defendant as a preliminary to bringing and maintaining the action for the amount due upon the defendant’s note.
¶8The sum of seven dollars and eight cents, paid by the plaintiff as the difference between the two notes, rests upon different grounds. It is necessary in rescinding a contract to return whatever may have been received upon it, before any action founded on such rescission can be maintained.
¶9The evidence introduced to show the value of Moore’s property was correctly admitted. The sum that it brought might well have been proved by any one that knew. It was not a fact to be proved by a record, which is kept for a wholly different purpose.
¶10For the misdirection of the court in the two particulars named, the verdict must be set aside, and a
¶11New trial granted.