13 Tex. 550 | Tex. | 1855
There can be no doubt but the Court sustained the demurrer on the ground that, as the contract was not to be completed before the end of five years, and it not being in writing, it was void under the statute of frauds providing that no action shall be brought “ upon any agreement which “ is not to be performed within the space of one year from “ the making thereof, unless the promise or agreement upon “ which such action shall be brought, or some memorandum “ thereof, shall be'in writing, signed by the party to be charged “ therewith.” (Hart. Dig. Art. 1451.) If the suit had been founded upon the verbal contract set out in the petition, and for its specific performance, or damages, for its breach, there can be no doubt but the demurrer would have been well taken, and correctly sustained by the Court. But the suit is not so brought. This contract is only set out by[|way of inducement, and not as the foundation of the action. It is contended that, induced by the contract, the petitioner had been at the expense of building a residence and erecting pens, preparatory to taking charge of the stock of the intestate; that for such labor induced by the contract, the defendant’s testator would have been liable whilst living, unless he had given notice that he would not comply with the contract; and his estate is now liable. It would be iniquitous to rule that the plaintiff had no redress for injury and loss, that the defendant’s intestate had induced him to incur. If the provision of the statute of frauds cited, is to have this effect instead of its preventing fraud, it will be making it the instrument and means of perpetrating fraud.
We believe that the plaintiff is entitled to compensation for Ms labor so bestowed before the death of the defendant’s testator, and not after.
The cases cited, by the counsel for the appellee, are all of them cases in which a part performance was sought to be made
Beversed and remanded.
