Ray v. Young

• Decision Date: 01 January 1855
• Citation: 13 Tex. 550
• Parties: ELIJAH RAY v. HUGH R. YOUNG.
• Court: Texas Supreme Court

13 Tex. 550

ELIJAH RAY

v.HUGH R. YOUNG.

Supreme Court of Texas.

1855.

Error from Goliad. This suit was brought to recover compensation for damages incurred by the plaintiff in work and labor done and performed by him in the execution of a verbal contract with the defendant's intestate. The contract is alleged to have been made about the 1st of June 1852; that it was agreed between defendant's intestate and plaintiff that plaintiff should keep the stock of cattle of the said intestate, for the term of five years, for one-fourth of the increase, to be appropriated and branded as plaintiff's share at suitable times for branding, generally from season to season; that plaintiff should prepare a family residence and suitable pens near the Escondido, at a place agreed upon between the parties, as soon as convenient; and when thus prepared, about the 1st of September, 1852, plaintiff should have the entire control of said stock and the said term of five years should commence; that plaintiff commenced the work of preparation and had nearly completed it when the defendant's intestate died; and that the work was completed before the 1st day of September, 1852. Plaintiff alleged the breach of this verbal contract, and its abandonment, and brought this suit to recover damages, by way of compensation, for the injury he had sustained in work and labor in preparing to keep the stock of the defendant's intestate; the presentation of the claim to the administrator and its rejection were averred. To this petition the defendant demurred, and the court below sustained the demurrer, from which an appeal was taken.

Pryor Lee, for plaintiff in error.

W. Alexander, for defendant in error. The executory verbal contract sued on, as it was “not to be performed within the space of one year,” was not actionable under the statute of frauds. (Hart. Dig., art. 1451.)

This futile executory contract was defeated, not by the act of defendant's intestate, but by his decease, which was the act of God. Upon his decease, the statute law concerning the estates of deceased persons required his administrator to disaffirm the contract. Such being the case, the demurrer to Ray's petition was properly sustained and his suit dismissed.

Preparatory and ancillary acts, such as Ray alleges he has done, are not acts of part performance. (Roberts on Frauds, Book 1, ch. 3, p. 139)

If the subject matter of the contract were real estate and not personal property, and the acts done had been acts of part performance instead of merely preparatory and ancillary acts, the courts of Texas...