We think it impossible to support the direction of the court to the jury, on the trial of this cause, that in the case stated the plaintiffs could recover on the count for goods sold and delivered. The plaintiffs, having consigned the goods to the defendant for sale, might undoubtedly have maintained an action for neglect or refusal to account on reasonable request. If the goods had been sold on credit, and the credit not expired; or if the purchasers had failed, having been in good credit at the time of the sale; then, on a special count, alleging the consignment, and a demand for an account, and the defendant’s refusal or neglect to account and pass over the *46proceeds, the defendant might show these facts, and they would constitute a good defence. But a neglect or refusal to account, though unreasonable, and not. excused by circumstances, cannot convert the consignment into a sale.
If the defendant had wholly refused to render any account, after a considerable lapse of time, we are not prepared to say that such refusal, with other circumstances, might not be evidence, to be left to the jury, to presume that the goods had been sold and paid for, so as to support a count for money had and received. But we are of opinion, that even such circumstances would not sustain a count for goods sold and delivered. .
Verdict set aside, and a new trial- ordered.