The opinion
OPINION ON MOTION FOR REHEARING
Hospital has pointed out an error of fact in our opinion which it deems material and to have resulted in an erroneous legal conclusion.
We did err in stating that Bee Jay did not receive anything of value for the transfer of land and improvements to Hospital other than its right to receive the rents discussed in the opinion. As pointed out by Hospital Bee Jay received (in addition) a portfolio of stock belonging to Hospital valued at $75,000.00.
Pointing out that the case is one in which Bee Jay did receive benefit of the bargain made, though not the full consideration it expected, Hospital relies upon certain language of the Supreme Court to support its claim that the Statute of Frauds should be held to apply. Cowden v. Bell, 157 Tex. 44 , 300 S.W.2d 286 (Tex.1957).
Cowden , according to Hospital, stands for the proposition that the Statute of Frauds cannot be circumvented if the “harm” consists of simply not receiving full consideration or the failure to get full benefit of a bargain. Upon this construction of Cowden Hospital proceeds, as we understand it, upon the theory that since Dolenz was the alter ego of Bee Jay and received further substantial consideration for the transfer of all real estate, Bee Jay had not sustained “actual loss” so as to make the transaction — considered as the transfer of the Bee Jay property — one in which the application of the Statute of Frauds to prevent recovery would result in a fraud.
We have considered the authority of Cowden , along with the opinion of the Court of Civil Appeals in the same case, and along with the opinions in other cases to *757 which there was reference. We find the contention of Hospital unsound. It is obvious from the authorities that where a party in a position analagous to that of Bee Jay cannot show that “actual loss” has been or will be sustained, meaning “substantial out-of-pocket loss”, the opposite party should be allowed to defeat his claim by invoking the Statute of Frauds. Here, however, Bee Jay has shown “actual loss”.
The doctrine of “de minimus non curat lex” stands for the proposition that law does not care for or take notice of very small or trifling matters. Anguiano v. Jim Walter Homes, Inc., 561 S.W.2d 249, 255 (Tex.Civ.App.—San Antonio 1978, writ ref’d n. r. e.). It was to this doctrine the Supreme Court had reference in Cowden . We certainly are ready to treat some amount of “loss” which is a mere trifle — for example a matter of a few dollars, or property right which measured in money could only amount to such — as insufficient result of fraud to authorize a court to refuse to honor the Statute of Frauds. However, in this case the “actual loss” of Bee Jay is considerably more than a trifle. Involved were many months of rentals at $1,500.00 per month. This qualifies as an “additional and substantial out-of-pocket loss”, sufficient cause to refuse to permit the Statute of Frauds to be invoked.
As noted in the opinion, under the circumstances of this case there is no occasion to treat the fact that Bee Jay was the alter ego of Dolenz as a factor. What Dolenz received as consideration must be disregarded in viewing what Bee Jay received. Dolenz was not a party to this suit. There is a case pending in a trial court with Dolenz a party defendant, presumably a defendant against whom there will be matters litigated which are either created or enhanced as the result of the judgment which Bee Jay has obtained.
The motion for rehearing is overruled.