A careful attention to the public nature of this case has brought us to the conclusion that the plaintiff’s right of recovery does not depend upon the whole principles in toto as are applicable to such an action,’where the purchaser seeks to recover back money paid under an absolute contract for the sale and purchase of real estate, on the ground that he is not in default, and the contract has been rescinded; for here the contract was not an absolute one, but a mere conditional one. The agreement of the plaintiff to pay the purchase price for the land was upon the express condition that the abstract of title to be furnished him by the defendant should show a good title in defendant. Then, at the close, it contains this further condition: “If the abstract shall not show a good title in the city, the $1,000 to be returned to the said Wisner.”
The abstract of title furnished by the city fails to show good title. This is not disputed. Under this state of case, nothing was required on the part of plaintiff to complete his right of recovery but to notify the comptroller of the defect and his refusal to accept the title, as shown by the abstract, within a reasonable time. This he did, and demanded back the money paid. Surely nothing can be clearer than that the retention of the money by the defendant, under these circumstances, was against equity and good conscience, irrespective of its express stipulation to pay it back in case the abstract to be furnished by the defendant failed to show it had a good title to the premises bargained for, for the law would impose the same duty without it. That principle was fully recognized in the case of Towers v. Barret, 1 Term R. 133. There the plaintiff sued to recover back ten guineas which he had paid the defendant on a purchase of a chaise and harness, which was subject to the condition that plaintiff might return them to defendant in case his (plaintiff’s) wife did not approve of it. The wife disapproved, and at the end of three days plaintiff returned the property by leaving it on defendant’s premises without his consent, and demanded back the money paid. The court held the contract of purchase was conditional, not absolute; and that on the disapproval by. his wife the plaintiff had the right by the very terms of the contract, and without regard to whether the defendant assented or'not to return the property to defendant; and that such return put an end to the contract, so that the defendant thereafter retained the money paid by plaintiff against equity and good conscience, and the action for money had and received would lie to recover it back. Gillett v. Maynard, 5 Johnson R. 85; 1 Chit. Pl. 356; Boston v. Clifford, 68 Ill. The city received the plaintiff’s money without consideration; it therefore holds it ex aequo et tono for the plaintiff. Broom’s Leg. Max. 63.
Under the particular circumstances of this case, we think the fact, if ever so clearly shown, that the plaintiff subsequently, and in July, 1873, was interested or instrumental in causing the outstanding title to the premises, to be purchased from him who was the holder of it in May of that year, when the contract in question was made, could constitute no legal bar to to plaintiff’s right to recover back the thousand dollars paid the defendant under such condition of contract. For the reasons given, the judgment of the court below will be reversed and the cause remanded.
Reversed and remanded.