Adm'r v. Hardeman
| Decision Date | 01 January 1855 |
| Citation | 15 Tex. 480 |
| Parties | MOSES EVANS' ADM'R v. JOHN M. HARDEMAN. |
| Court | Texas Supreme Court |
A contract to locate land certificates on the shares is not within the statute of frauds, and is not required to be in writing. [10 Tex. 340;18 Tex. 19;28 Tex. 130, 247.]
An agreement to the effect that if the person for whom the obligor has undertaken to make a location and procure a patent will accept a certain selection of land for the location, the obligor will guarantee him a certain price per acre for it, is not within the statute of frauds.
When a party contracts to do a thing, a reasonable time, under the circumstances, is allowed to do it in, and the statute of limitations does not commence to run until the expiration of such reasonable time, and it seems that the question of reasonable time is for the jury,
A guaranty by a locator, that if the obligee will accept of a certain selection, he shall get a certain price per acre for it, is a claim for unliquidated damages, to wit: for the amount per acre which the land is reasonably worth less than the price guaranteed; and such a claim is not required to be presented to an administrator before suit.
Appeal from Washington. Suit, March 25, 1854, by the appellee against the appellant on the following state of facts: Evans being a land locator, undertook to locate Hardeman's headright for a league and labor and procure patent therefor, in consideration whereof Hardeman was to convey to Evans one-half of a league. Evans selected the location on the Yegua, in Washington county. Hardeman was present when the surveys were made. Two surveys were made. This was in 1848. After going over the land Evans asked Hardeman how he liked it. Hardeman replied that it was very poor and that he would not have it. Evans said that if Hardeman would consent to the selection, he would guarantee him one dollar an acre for it as soon as he could have time to prepare the papers and send or go to New York or the north, to sell it, witness understood a reasonable time, or give him his choice of a like number of acres out of any lands he, Evans, owned. Hardeman assented to this, but objected to there being two surveys, thereby rendering it impossible to locate the labor; whereupon it was agreed that Evans should give Hardeman another labor in its stead. Evans then said Hardeman might use timber off the land, as it would not injure its sale in New York. A witness stated that the cause of Evans' being anxious for Hardeman to accept the selection was, that a Mr. Peck, who was present, had agreed with Evans to give him his certificate for a league and labor for Evans' half, and that he did so, and as soon as they came out of the woods, Hardeman, at the request of Evans, conveyed to Peck the one-half of the league. The patent was obtained the same year. There was evidence that Hardeman used timber off the land; endeavored to sell it asking a dollar or more per acre; that he did sell 200 acres for one dollar per acre; and paid the taxes. There was some evidence also that Evans was making preparations to sell the land in New York in 1853, when he died. The jury found for the plaintiff $1,749.
Rogers, for appellant.
Sayles, for appellee.
The principal questions to be determined in this case are, 1st: Whether the contract set up and relied on by the plaintiff to support a recovery is affected by the statute of frauds; and 2d, whether the right of action was barred by the statute of limitations.
In Watkins v. Gilkerson (10 Tex. 340), this court decided that a contract, whereby one party agreed to locate land certificates of another, and to obtain patents thereupon, in his name, and the latter agreed, in consideration therefor, to convey to the party so locating and obtaining patents, a part of the land, is not within the statute of frauds, and may be enforced by an action for a specific performance, to compel a conveyance of the land in accordance with the contract, though it be not evidenced by writing. Upon the authority of that case, it is clear the contract between the parties in the present, originally, was not within the operation of the statute; and we are of opinion that the change or modification of its terms, subsequently made by agreement of the parties, did not have the effect so to change the nature of the contract as to bring it within the statute, or to require that it should be...
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...the parties at the time of the execution of the contract, as well as the facts and circumstances occurring thereafter. Evans v. Hardeman, 15 Tex. 480; Benavides v. Hunt, 79 Tex. 395, 15 S. W. 396; Hart v. Bullion, 48 Tex. 279. And, in determining the question of reasonable time, the court w......
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...and unprecedented case. See Stanton v. Stanton, supra; Jameson v. Jameson, 72 Mo. 640;French v. Merrill, 132 Mass. 527;Evans v. Hardeman, 15 Tex. 480. No absolute presumption of payment arises from taking a new note for an old one; that is a question of fact, rather than law, and has been f......