Penshorn v. Kunkel

90 S.W. 719, 41 Tex. Civ. App. 97, 1905 Tex. App. LEXIS 22

Opinion

KEY, Associate Justice.

This is a suit for specific performance of a contract of sale of real estate, and also for damages against some of the defendants, if the contract is not enforced. There was a nonjury trial, resulting in a judgment for all of the defendants, and the plaintiff has appealed.

There is no statement of facts in the record, and the case is submitted in this court on the trial judge’s findings of fact. The judge made no findings on the issues relating to damages, so that branch of the case is eliminated.

The defendants pleaded the statute of frauds as against the claim for specific performance, and that plea was sustained. The written instrument relied on as taking the case out of the statute reads as follows :

“New Braunfels, Texas, April 11, 1904. Received of A. W. Penshorn, fifty dollars on estate of Anna Fechner. (Signed) Chris. Kunkel.”

We agree with the trial court that this instrument was so radically defective that it could not be aided by extrinsic evidence, and did not take the case out of the statute of frauds. (Patton v. Rucker, 29 Texas, 408; Zanderson v. Sullivan, 91 Texas, 499; Morrison v. Hazzard, decided by this court at its last term, 88 S. W. Rep., 385.)

No error has been shown, and the judgment is affirmed.

Affirmed.