McCreless Shopping Village, Inc. v. Burton

• Decision Date: 20 December 1961
• Docket Number: No. 13839,13839
• Citation: 352 S.W.2d 802
• Parties: McCRELESS SHOPPING VILLAGE, INC., Appellant, v. Dr. Kenneth G. BURTON, Appellee.
• Court: Texas Court of Appeals

Page 802

352 S.W.2d 802

McCRELESS SHOPPING VILLAGE, INC., Appellant, v. Dr. Kenneth G. BURTON, Appellee.

No. 13839.

Court of Civil Appeals of Texas, San Antonio.

Dec. 20, 1961.

Rehearing Denied Jan. 10, 1962.

Boyle, Wheeler, Gresham Davis & Gregory, A. W. Worthy, San Antonio, for appellant.

Roger W. Wooldridge, San Antonio, for appellee.

MURRAY, Chief Justice.

McCreless Shopping Village, Inc., brought this suit against Dr. Kenneth G. Burton, seeking to recover $2,500.00, together with interest and attorney's fees, based on a written two-year lease contract dated May 2, 1955. Dr. Burton relied upon an alleged new agreement cancelling this debt.

The trial was to a jury, and the jury found (1) that the parties mutually agreed orally that the $2,500.00 obligation was canceled; (2) that Dr. Burton did not agree to do something of material value and benefit for the plaintiff as an inducement for the cancellation; (3) that Dr. Burton remained in the Medical Center throughout the remainder of the lease in reliance on the agreement, and (4) that Dr. Burton was insolvent at the time the oral agreement was made. The trial court entered judgment for Dr. Burton on the verdict of the jury and McCreless Shopping Village, Inc., has prosecuted this appeal.

Appellant's first contention is in effect that the alleged oral agreement was void because in violation of Subd. 4 of Art. 3995, Vernon's Ann.Civ.Stats., providing as follows:

'Art. 3995. Writing required

'No action shall be brought in any court in any of the following cases, unless the promise or agreement upon which such action shall be brought, or some memorandum thereof, shall be in writing and signed by the party to be charged therewith or by some person by him thereunto lawfully authorized: * * *

'4. Upon any contract for the sale of real estate or the lease thereof for a longer term than one year; * * *.'

It is undisputed that this oral agreement undertook to change a written contract for the lease of real estate for a term of two years. The rule governing this situation is well stated in Minchen v. Vernor's Ginger Ale Co. of Houston, Inc., Tex.Civ.App., 198 S.W.2d 613, 615, as follows:

'The general rule applicable to the modification of contracts within the Statute of Frauds is that such contracts cannot be modified by subsequent parol agreements between the parties. Vernon's Ann.Civil Statutes, Article 3995, subd. 4. However, an exception to the rule exists where the party relying on the oral agreement has performed his undertaking thereunder so that a refusal to enforce the modified agreement would result in wrong to him. Hooks v. Bridgewater, 111 Tex. 122, 229 S.W. 1114, 15 A.L.R. 216; Lechenger v. Merchants' Nat. Bank, Tex.Civ.App., 96 S.W. 638; Adams v. Hughes, Tex.Civ.App., 140 S.W. 1163.'

There can be no question as to the fact that the original lease was in writing and met all the requirements of Subd. 4, Art. 3995, supra, and the only question is, 'Was the alleged oral agreement valid as an exception to the general rule that such contracts cannot be modified by a parol agreement?

It might be well to here make a rather full statement of the facts in this case. Appellant and appellee entered into a written lease whereby appellee leased from appellant a portion of a medical center owned by appellant, for a period of two years, with option of renewal for another two years. Appellee agreed...