¶1We are unable to see any insuperable legal obstacle in the way of the plaintiff’s recovery in this action. The evidence as stated in the exceptions was amply sufficient to warrant a jury in finding that the plaintiff’s intestate was induced to take the notes of Cook in payment for a portion of the purchase money of his share of the schooner by the false representations of the defendant, made fraudulently with an intent to deceive, the defendant well knowing the representations to be false. If so, then it is clear that the purchase money has not been paid in full, and the plaintiff can well maintain an action of assumpsit to recover so much of the agreed price as the notes of Cook were intended to pay. The case stands as if the defendant had given counterfeit bank notes in payment, knowing them to be false and representing tnem to be genuine.
¶2It is no answer to this claim to say that the whole contract for the safe and purchase of one eighth of the schooner is not *396rescinded, and that the plaintiff still retains a portion of the con«¿deration which was paid therefor. This ground of defence might have been available in an action brought to recover back the thing sold. But this action does not proceed at all on the ground of rescission. On the contrary, the plaintiff affirms the sale fully, and only seeks to recover damages consequent on the non-payment of the stipulated price. The alleged payment has proved to be inoperative by reason of the false and fraudulent representations of the defendant. This point was distinctly adjudicated and settled as the law of this commonwealth in Martin v. Roberts, 5 Cush. 126, a case very like in its facts to the one at bar.
¶3Nor is it at all material that the worthless notes which were delivered to the plaintiff’s intestate were not given up and surrendered to the defendant before or at the trial of the case. The omission to do so can have worked no possible harm to the defendant, and substantial justice would have been done if the plaintiff had placed them on the files of the court, to be delivered to the defendant at any time before final judgment should have been rendered in his favor. This can now be done, in the event that upon a new trial he shall establish the alleged false and fraudulent representations. Exceptions sustained.