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
Mr. Justice Simpson
concurring.
The result, as I see it, is right. The better view seems to call for a departure from so much of the Wood case as takes a contract not to be performed within a year out of the operation of the statute of frauds merely because one of the parties might die within the year. But the holding of the main opinion goes further than I think necessary or proper and cites Paschall v. Anderson, without challenging its holding that full performance of peresonal services under an oral contract not to be fully
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performed within a year does not take the contract out of the bar of the statute and entitle the employee to recover what his employer had agreed to pay him. In such a case the employee has done the work and there is nothing left for his employer to do but pay what he had promised. This he should be made to do. It is reasoned in this connection that the statute was meant to prevent, not to aid, the perpetration of a fraud. Now the case at bar involves partial performance of a statutorily inhibited oral contract for personal services. The main opinion correctly holds in effect that in the absence of special equitable considerations, none of which appear here, partial performance by the employee will not bar the employer from raising the statute as a defense. The employee’s remedy is ordinarily a suit for the reasonable worth of his services, or, put another way, in quantum meruit. The employee did not show himself entitled to a recovery on this basis. The judgment was rightly against him.
But there is no need to cite or rely on Paschall v. Anderson, which not only involves a different fact situation but is, I submit, against the great weight of authority and much the better reasoning. When a state of facts like that in Paschall v. Anderson arises, it is my hope that this court will not regard the opinion as authoritative. Overruling the Wood case places Texas in line with the moro widely accepted rule that the possibility of death does not take a contract like the one in this case out of the statute of frauds. If at the same time we departed from Parchall v. Anderson, it would finish the task of lining Texas up with definitely the majority as well as what I think much the better view that full performance by the employee or an oral contract required by the statute of frauds to be in writing because not to be performed within a year takes the contract out of the statute. Diamond v. Jacquith, 14 Ariz. 119 , 125 Pac. 712 , L. R. A. 1916D 880 and note beginning at p. 890; 49 Am. Jur., Statute of Frauds, sec. 554; 37 C. J. S., Statute of Frauds, sec. 251; 20 Tex. Jur., Statute of Frauds, sec. 50; Restatement of Contracts, sec. 198. Perhaps, because of differing facts, this case is not the right occasion for overruling Paschall v. Andereson. What I earnestly hope is that the correctness of that decision will be deemed open for further consideration in this State.
Opinion delivered June 30, 1948.