Wilde J. delivered the opinion of the Court. If the goods sold to the defendant had been by him sold and converted into money, the instruction to the jury would, in an action for money had and received, have been Correct. Jones v. Hoar, 5 Pick. 285. But if the plaintiff rescinds the contract, as he would have a right to do, the defendant failing to perform the condition of sale, his proper remedy for a conversion of the property is an action of trover. And he cannot waive the tort and recover the value of the goods in an action of assumpsit.

In such a form of action the contract is admitted to exist at the time of the action brought. And where there is an express contract, the law will not imply one. This was decided in Ferguson v. Carrington, 9 Barn. & Cressw. 59, and in Strutt v. Smith, 1 Crompt. Mees. & Roscoe, 315.

In the latter case goods were sold “at seven and a half per cent discount mil at three months, or ten per cent discount cash in fourteen days.” And it was held, that the vendors could not sue in assumpsit for goods sold and delivered, within the fourteen days, even if the sale had been effected by fraud on the part of the vendee, so that trover might have been maintained for the goods ; for that the plaintiffs could .not avail themselves of the defendant’s fraud, so as to rescind the contract, and to substitute a new contract of sale on different terms. The case of Hill v.

Perrott, 3 Taunt. 273, cited by the plaintiff’s counsel, is in no respect inconsistent with the principle znaintained in the above cases. In that case, it is true, it was held that assumpsit would lie for goods sold and delivered, which the defendant had, by fraud, procured the plaintiff to sell to an insolvent person, and which the defendant had after wards gotten into his possession. But the reason given for the decision is, that the defendant could not be pei’mitted to set up a sale procured by his own fraud; and that his mere possession of the goods unaccounted for raised an implied proznise to pay.

Upon the authority of these cases, and upon principle, we are of opinion, that the plaintiff cannot rescind the contract, and recover the value of the goods sold in this action ; and iti this respect the charge to the jury was not correct. Verdict set aside and new trial granted.