Showalter v. McDonnell , 83 Tex. 158 ( 1892 )

This suit was brought by the appellant to recover the sum of $2000 alleged to be due him on account of a parol agreement made with the appellee, to the effect that said sum would be paid appellant in consideration of his making to the appellee and his sister Mary McDonnell a deed conveying his interest in a designated league of land, and procuring a like deed from two other persons named. The petition charged that the deeds were executed and delivered according to the terms of the agreement, and that the defendant had refused to pay the consideration.

The cause was tried without a jury, and the following conclusions of fact were filed by the judge:

"I find from the evidence that the material allegations in plaintiff's petition have been proved substantially as alleged, to-wit:

"1. That the agreement for the sale and purchase of the land described in plaintiff's petition was made as alleged, and that the plaintiff executed his part of the agreement before the 1st day of January, 1890.

"2. That the defendant made such agreement with the plaintiff through his agent; that the agreement between the agent and plaintiff was a verbal one, and that said agent's authority from defendant was verbal only.

"3. That the consideration agreed to be paid by the defendant to plaintiff was the sum of $2000, payable ninety days from January 1, 1890, and that same has not been paid."

The judge filed the following conclusion of law, and rendered judgment accordingly: "From which facts my conclusion of law is, that the plaintiff can not maintain his action in this court, because the agreement upon which the same is brought or some memorandum is not in writing signed by defendant."

By the finding that plaintiff executed his part of the agreement within the stipulated period of time, it appears that he delivered to the defendant the deeds contracted for. Such finding necessarily includes an acceptance of the deeds by the defendant, as there could not have been a delivery without such acceptance. After such delivery and acceptance the statute of frauds had no application. In such cases the purchase money may be collected, notwithstanding the absence of a promise in writing to pay it. Adkins v. Watson, 12 Tex. 199; Fulton v. Robinson,55 Tex. 401.

The judgment will be reversed and the cause remanded.

Reversed and remanded.

Delivered January 29, 1892.