The opinion of the court was delivered, by

— It may be conceded that time was not of essence of the contract of sale in this case, and that before the resale Poulson might have called on Parker for performance. And it may be also admitted that after Parker had resold, Poulson was entitled to treat the bargain as rescinded, and recover the money paid upon it. But it is clear that the $200 were not a mere deposit, in the hands of a third party, to answer a specified purpose, but were a part of the price paid to Thomas & Sons as the agents of Parker. The payment being made on the contract, the money became Parker’s, and is liable in his hands to make good any injury he has sustained by Poulson’s default. Money thus paid clearly cannot be recovered, except on the ground of mutual rescission, and then the recovery is not upon the footing of any contract to restore, but rests upon an implied contract to pay money, which Poulson is entitled ex equo bono to recover in an action of assumpsit for money had and received. Had Poulson been in no default, and Parker had resold without a tender of a deed and notice of the resale, Poulson could have recovered his money without abatement, as that ex equo bono would have been his right. But the proof is that the terms of sale were for a sale absolute at auction, $200 to be paid at the time of sale, and the balance in cash on the execution of a deed within fifteen days; and that Thomas & Sons had the title-deeds before and for fifteen days after the sale, and requested Poulson to call for the purpose of closing the sale. It was Poulson’s business in a sale of this description to prepare for execution the deed, and tender payment, and yet he did nothing, but suffered the matter to rest from *136the 30th April till the 17th of October following, when .Parker resold at a loss. Clearly Poulson was derelict, and though Parker having omitted to tender execution of a deed and give notice of a resale, might be unable to recover the loss on the resale, it is clear he is equitably entitled to retain the expenses he incurred in making the sale which Poulson by his default suffered to fall through. Poulson evidently did not intend to perform his contract, and took no steps toward performance. Under these circumstances, as it is not conscionable that he should make Parker pay back the whole sum, his action for money had and received is in the nature of an equitable proceeding where the contract to refund is only an implication of law arising from a duty to do that which equity and good conscience demand. It appears that the expenses of sale were $120.63, which Thomas & Sons had actually charged to their principal, crediting him with the $200 paid. The difference in their hands is all that can justly be recovered under the state of facts appearing in the record. For this difference the learned judge ought to have instructed the jury the plaintiff might recover.

Judgment reversed, and venire facias de novo awarded.