47 N.E. 1009
Mass.
1897
Allen, J.

This action is brought to recover money paid by mistake by the plaintiff to the defendant, upon a check which the plaintiff had been instructed by the drawer not to pay. The statement of facts is imperfect, but it is said in the plaintiff’s brief that the check was drawn upon the plaintiff by one Hebert in favor of the defendant, and given by him to the defendant. There is no suggestion that it was so given as a gratuity or merely for the defendant’s accommodation, and we assume that it was not so given. Payment had once been demanded and refused, but on a second presentation of the check several weeks later it was paid thro,ugh inadvertence. The plaintiff demanded a return of the money without tendering the check to the defendant, and there was no such tender until the day of the trial. The only question which has been presented to us is whether it *283was necessary to tender the check before bringing the action; and we think it was.

It has often been held that, when one wishes to rescind a contract and recover what he has paid under it, he must first restore whatever of value he has received. Snow v. Alley, 144 Mass. 546, 551. Bartlett v. Drake, 100 Mass. 174, 176. The reasons for this rule are fully applicable to the present case. The check, if unpaid, belonged to the defendant, and would be useful and valuable to him to be used in connection with his own testimony in establishing a claim against Hebert. It has been held that anything absolutely worthless, like a counterfeit bill, need not be returned. Brewster v. Burnett, 125 Mass. 68. Kent v. Bornstein, 12 Allen, 342. Snow v. Alley, 144 Mass. 546, 551. Reed v. Boston Machine Co. 141 Mass. 454. But the check in the present case was not of that character. If upon its presentation payment had been refused, the plaintiff would have had no right to retain possession of it, and such retention against the defendant’s will would have been a conversion. And if, after a payment had been made through inadvertence or mistake, the plaintiff sought to enforce a return of the money, it was its duty first to tender the check to the defendant. It would be of use to him, and he was entitled to have it before returning the money. The case of Evans v. Gale, 21 N. H. 240, is much in point; and the doctrine of this decision was affirmed in Cook v. Gilman, 34 N. H. 556. The same doctrine is implied in Coolidge v. Brigham, 1 Met. 547, 550; Merchants’ National Bank v. National Eagle Bank, 101 Mass. 281, 285; Estabrook v. Swett, 116 Mass. 303; and Bassett v. Brown, 105 Mass. 551, 558. See also Otisfield v. Mayberry, 63 Maine, 197; Park v. McDaniels, 37 Vt. 594.

Upon the agreed statement of facts, the entry must be,

Judgment for the defendant.