Robinson v. Batzer

Ostrander, J. (after stating the facts). It was defendant’s position in the trial court, indicated by a motion to withdraw items of plaintiff’s demand from consideration by the jury, that plaintiff performed labor upon the farm and expended money in that connection at his peril; that as to the items for ice and manure left at the farm there was no testimony tending to prove that they were ever appropriated by defendant; that as to the purchase money paid by plaintiff he could not be heard to deny the validity of the land contract, and, if not void “as against him,” the money was not recoverable under the count for money had and received. His position is not different in this court, except that it is not contended that plaintiff may not recover the purchase money he had paid defendant; nor is any fault found with the charge of the court submitting to the jury certain items of the claimed set-off. It has been held (Davis v. Strobridge, 44 Mich. 157 [6 N. W. 205]), that an oral contract for the sale of land may be made valid by part performance, and that, when one who has contracted orally to sell land rescinds the contract and ousts the vendee in possession, the latter may acquiesce and recover money paid on the contract, and, if the contract is rescinded without his fault, the land has been cleared, and the benefit of the work is appropriated by the vendor, he is liable to pay for it. [242] The terms of the writing to .which the daughter of defendant signed his name, and which he at once repudiated, do not appear. The terms of the oral agreement, if a complete agreement was made,' are left uncertain by the testimony. Who was responsible for not carrying out whatever oral understanding there was does not appear. Plaintiff has not gone far enough in his proofs to permit the application here of the rule of Davis v. Strobridge; to show that there was a complete and certain parol contract, that in reliance upon it he took possession of the land, that the contract was without his fault rescinded, that he acquiesced in the rescission. The inferences to be drawn from the testimony are that there was not a complete parol agreement; that the understanding, in a general way, was that defendant would sell his farm for $7,-S00 and plaintiff would, some time, pay that sum; that plaintiff found some fault with the defendant’s title, and, being in possession, was later on evicted in summary proceedings. At the common law there was no recovery allowed for betterments as against the title holder. Our statutes permit such a recovery only in cases of ejectment when the owner brings the suit; and not as a personal judgment, but as a condition to the obtaining a writ of possession. In any event, a claim for betterments is founded upon equitable grounds, and the character of the improvement must be such as to make the land more valuable in the future for the ordinary purposes for which such property is owned and used. Plaintiff was neither a tenant, nor, so far as appears, was he holding under a contract to purchase, and so defendant was not a landlord nor a vendor in a contract to sell; though it cannot be said that in entering upon the land plaintiff entered in bad faith. As I think the facts negative the right of defendant to maintain an action against the plaintiff for use and occupation, [243] at least before notice to quit was given, so I think they negative the right of plaintiff to recover for betterments. As to the ice and manure, there is no evidence that defendant appropriated either. There is, however, no apparent reason for refusing plaintiff a recovery for the $300 he paid to defendant. The last of this sum was paid November 25, 1914, and from that time interest at 5 per cent, per annum should be paid. The judgment is reversed in part, and the court below advised to enter judgment for plaintiff as indicated, with costs. In this court no costs will be awarded to either party. Act No. 314, Pub. Acts 1915, chap. .47, § 20 (3 Comp. Laws 1915, § 13701). Kuhn, C. J., and Stone, Bird, Moore, Steere, Brooke, and Fellows, JJ., concurred.