In general terms, it is said that a man may not assume and maintain inconsistent position to the prejudice of another’s rights. He cannot retain the benefits of a contract and repudiate its obligations and burdens, nor can he hold to the advantages acquired in the course of a *499 business deal or negotiation, and by reason of it, when be bas bimself renounced and refused to abide by tbe terms. Tbe position is usually referred to tbe doctrine of estoppel in pais, wbicb rests, in its last analysis, on tbe principles of fraud, and it is not always necessary that tbe fraudulent purpose shall be present at tbe inception of the transaction, but tbe principle may at times operate and become effective by reason of an unconscionable refusal to return tbe consideration or make such restitution as equity and good conscience requires. McCullers v. Cheatham, 163 N. C., 61; Smith v. Young, 109 N. C., 224; 10 R. C. L., title, Estoppel, 688; Bigelow on Estoppel, 7441; 16 Cyc., 785, et seq.

Approving these general principles in Smith v. Young, supra, where one bad sold another his. cotton for cash, and the purchaser undertook to apply tbe proceeds to notes held by him against the vendor, and it was.held that the latter had tbe right to disaffirm the sale and recover the full price of tbe cotton in an action for wrongful conversion, Avery, J., delivering the opinion, said: “Tbe defendants bought for cash and were bound to pay the money or return the cotton. A man cannot take property wrongfully and apply the value of it rightfully, even in discharge of a just debt due him from tbe owner.” And so here, tbe plaintiff company, having repaired defeiidant’s car, had a mechanic’s lien thereon for the amount due. Eevisal, sec. 2017. Construing tbe statute, our Court has held that tbe lien is lost by surrendering possession to the owner. Black v. Dowd, 120 N. C., 402; McDougal v. Crapon, 95 N. C., 292.

Defendant, in payment of tbe claim, gave plaintiff a check on tbe bank for the amount, importing a cash payment, and thereby plaintiff was induced to surrender the possession of the car. Defendant, believing that tbe repairs had been of no benefit, stopped payment of tbe check, but when he does so be must restore plaintiff’s possession and put him in the position to enforce his mechanic’s lien for the amount due. No doubt the defendant had no fraudulent purpose in giving the check, and the jury have found that there was no actual fraud, but having obtained possession of his car under a promise to pay cash, on refusal, he is estopped to resist enforcement of mechanic’s lien by reason of the possession thus acquired.

It is contended for defendant that plaintiff is prevented from asserting his claim by the fact that the check was given and the car delivered to the owner on Sunday, and an exception is noted for refusal to submit an issue as to these facts. In our opinion, if this were established it would only tend to strengthen the plaintiff’s position, but under our decisions construing section 2836 of Eevisal, that which forbids the pursuit of one’s ordinary calling on Sunday, the law is restricted to those acts and callings which have a tendency to interfere with the seemly *500 observance of the day, and so construed, it would not, on the facts of this record, invalidate the check or inhibit the delivery of the car on Sunday, the repairs to the car having been made in the working days of the week. Rodman v. Robinson, 134 N. C., 503; Melvin v. Easley, 52 N. C., 356.

It may be well here to note that the statute excepts works of necessity, etc., and would no doubt permit repairs to be made in a clear ease of emergency.

It was further insisted for defendant that the issue chieñy debated between the parties, and that on which the larger part of the costs accrued, was the fourth, addressed to the question of actual fraud, and that defendant, having obtained' the verdict on that issue, the costs of same should not be taxed against him. But the suit is to recover possession of the car to enable plaintiff to enforce a mechanic’s lien for the amount due, and plaintiff having established his right of action for the purpose indicated the costs follow the recovery by express provision of the statute. Revisal, sec. 1264, subsec. 2.

There is no error, and judgment in plaintiff’s' favor is affirmed.

No error.