Opinion by
Mr. Justice Williams,This was a proceeding by sci. fa. sur mechanic’s lien. The defense set up was that the contract for the houses against which the lien was filed was made with one Pennock, who had failed before their completion; and that the plaintiff who was a large creditor of Pennock, and became the purchaser of his property at sheriff’s sale, had completed the work for him, having assumed his place under the original building contract. If this was so, then as Pennock had been overpaid for the work done by him, the plaintiff would be entitled to receive no more than the balance, if any, that might be due under Pennock’s contract. This raised a question of fact for the jury which they have decided in favor of the defendant. No question under the statute of frauds is raised by this line of defense. It is not sought to hold the plaintiff for the default of Pennock and compel him to respond therefor. He has responded. He has made good the default of Pennock, which he could not have him compelled to do ; and the question now raised is whether having performed the work in compliance with Pennock’s contract, he can recover for it, because he might have declined to perform it? The question needs no more than to be stated. The time to set up the statute if it could have been successfully invoked by Marshall at any time was before the work was done. He could not do the work and then by filing a mechanic’s lien attempt to recover for it in a manner wholly different from that to which he agreed to look when the work was undertaken. One who would repudiate his own agreement should do so before he has performed it. We see no error in this record to require the reversal of the judgment and it is now affirmed.