This is a case made after judgment. The action was commenced before a justice of the peace and taken by appeal to the circuit court and there tried without a jury. The hearing was on the common counts and the general issue. A portion of the evidence is brought up, but not all. The judge made special finding, which he subsequently amended at defendant’s instance. No means are afforded for inquiring whether the evidence required the finding of other facts or a modification of the series of facts actually found.
The only question raised is whether the judge’s conclusions of fact support the judgment. They are, in substance, that in March, 1876, the defendant orally agreed to sell the plaintiff forty acres of land for $750; that the plaintiff was to pay down $100 and at least $100 in each year thereafter until the whole amount with interest should be paid, and that the defendant within a few days would cause the agreement to be reduced to writing; that the plaintiff immediately paid the first instalment of $100, and was at the same time admitted into actual possession under and in pursuance of the contract ; that the plaintiff proceeded to occupy the land and made an improvement in the form of clearing of the value of $20, and in October of the same year paid $50 more on *159the purchase price; that in December following the plaintiff offered to pay §200 more if the defendant would have the contract put into writing according to the understanding, but the defendant refused and informed the plaintiff that unless the whole residue of the purchase price was paid in twenty days he would dispossess the plaintiff of the premises; that the plaintiff offered to surrender the land if defendant would refund the amoxxnt, being $150, which had been paid, but defendant x-efused to do so; that the defendant in January, 1877, notified the plaintiff in writing to surrender the premises, and that the latter elected to consider the notice as a rescission of the agreement and vacated the premises in accordance with it; that up to the time of the demand of possession the plaintiff had kept the agreement on his part. The amount allowed consisted of the purchase money and intei’est and the value of the clearing, making in all $177.24, and for this judgment was given.
The contract of sale became a valid one by pax-t performance (Scott v. Bush 26 Mich. 419), and when the defendant proceeded to take xneasures to oust the plaintiff and put an end to the contx-act, the latter was at liberty to acquiesce and consider‘it as determined by the former. This he did, and as a consequence there was a failure of consideration for the purchase money which had been paid, and the defendant became liable to pay it back under the equitable count for money had and received, and according to oxir previous decisions the allowance of the interest was not illegal. The clearing was a valuable service to the land. It was made in reliance on the partly executed agreement, and by repudiating that agreement the defendant appropriated it. By so doing he made himself liable for it. He could not retain the benefit without paying for it.
As no error is shown the judgment must be affix’med with costs.
The other Justices concui’red.