noting that even “ ‘full performance,’ in the sense of full payment of the 3 consideration by the purchaser, is held not to make the Westergren also contends that he fully performed the contract enforceable unless accompanied by other agreement by releasing the lis pendens and giving up circumstances, such as change of possession and his contractual right to the property. Like the $500,000 erection of valuable improvements”
How later courts described this case
- noting that even “ ‘full performance,’ in the sense of full payment of the 3 consideration by the purchaser, is held not to make the Westergren also contends that he fully performed the contract enforceable unless accompanied by other agreement by releasing the lis pendens and giving up circumstances, such as change of possession and his contractual right to the property. Like the $500,000 erection of valuable improvements”
- noting that even “ ‘full performance,' in the sense of full payment of the consideration by the purchaser, is held not to make the contract enforceable unless accompanied by other circumstances, such as change of possession and erection of valuable improvements”
- opining that working for full term of alleged parol contract without compensation might be sufficiently referable to, and corroborative of, contract so as to remove it from statute of frauds
- applying requirement that performance be unequivocally referable to oral contract on facts involving only one alleged oral contract
Written by the judges who cited it.
The opinion
ON MOTION FOR REHEARING.
Mr. Justice Garwood,
delivered the opinion.
*115
In the motion for rehearing, able counsel representing the petitioner in the appellate courts urges that, even should we adhere (as we do) to our holding that there was no error below, we, nevertheless, reverse and remand the case to the trial court, to enable petitioner to amend and sue in quantum meruit. Conceding, for argument, that trial court counsel not unreasonably thought we would overrule Paschall v. Anderson, 127 Texas 251 , 91 S. W. (2d) 1050 , and further conceding that the request for remand is properly made for the first time at this late stage of the proceedings, it must yet be denied. The provision of Rule 505, Texas Rules of Civil Procedure, authorizing the Court to “reverse and remand the case to the lower court, if it shall appear that the justice of the case demands another trial” obviously does not refer to a situation in which there was no error below upon which to predicate a reversal. Our law does not contemplate remands for new trial except in connection with reversals and does not permit reversals except for errors. Scott et al v. Walker, 141 Texas 181 , 170 S. W. (2d) 718 , and cases cited. The decisions cited for petitioner, to wit, United Gas Corporation v. Shepherd Laundries Co., Inc., 144 Texas 164 , 189 S. W. (2d) 485 , and Hall v. O. C. Whitaker Co., 143 Texas 397 , 185 S. W. (2d) 720 , were both cases in which error was committed by the trial court and reversals had accordingly.
The motion for rehearing is overruled.
Opinion delivered October 6, 1948.