Stating the case most favorably for Johnson, the facts material to the question to be decided by this court are, in substance, that the plantiffs in error owned some lots in Valley View Addition to the city of Abilene, in Taylor County, and employed W.A. Farquhar to look after their interest and to superintend the building of houses upon the lots. Farquhar was authorized to sell the lots so improved. As the agent of H.H. and L.D. Cobb, Farquhar made a verbal contract with Johnson to improve one of the lots and sold it to him to be improved and delivered at a sum not exceeding $1,100. Farquhar had a house constructed upon the lot and when it was nearly completed authorized Johnson to take possession of the house, which he did. Johnson paid none of the purchase money of the lot, but after he moved into the house he built what he termed a chicken house, which other witnesses denominated a chicken coop, which was constructed by adding it to the side of another building and the yard fence. Johnson testified that the chicken house was worth $15; Farquhar and other witnesses testified that it was worth about $5 or a little more, and stated the different items of material and labor, which was not denied by Johnson as being a correct statement of those things necessary to erect the chicken house. Cobb denied the authority of Farquhar to make the contract of sale and Farquhar denied that he made the sale but we assume for the purposes of this *Page 443 decision that Farquhar was authorized to make the sale and did so make it. Plaintiffs in error demanded possession of the property from Johnson, and, upon his refusal to surrender, instituted a suit against him for possession of the property and sued out a writ of sequestration, which was levied upon the lot, and Johnson dispossessed. Johnson answered setting up the parol contract made with Farquhar, his taking possession and the improvement by making the chicken house as before stated. He also claimed that by reason of the making of the contract that he was caused to abandon another contract which he had on hand for a house to be built on another lot and asked for specific performance of the contract made with Farquhar. A verdict was rendered in favor of Johnson and judgment entered against Cobb, which was in part affirmed by the Court of Civil Appeals.
The question presented to this court is raised by the following assignment of error: "The jury erred in finding, and the court erred in holding and adjudging that the contract, made between Farquhar and Johnson, concerning the premises in controversy, was without the statute of frauds. Proposition. The contract sued on was verbal. It is not taken out of the statute of frauds by reason of the improvements placed on the property by Johnson; by Johnson taking possession by authority by Farquhar; by Johnson having abandoned his negotiations with James for a house and lot; and by Farquhar having done a day or two's work on the house after Johnson had moved in."
The burden was upon Johnson to establish the facts which would take the verbal contract out of the statute of frauds to entitle him to a specific performance. (Ann Berta Lodge v. Leverton,42 Tex. 18.) Possession, alone, would not be sufficient to entitle the party to a specific performance of a verbal contract. (Lodge v. Leverton, cited above.) Therefore the inquiry in this case is reduced to the question, was the chicken house built by Johnson upon the premises permanent and valuable improvements within the meaning of the law and such as to entitle him, in connection with his possession, to have the contract specifically performed? It is well settled in this State that improvements of an insignificant character will not serve to take a verbal contract for sale of land out of the statute of frauds. (Lodge v. Leverton, cited above; Eason v. Eason, 61 Tex. 227; Bradley v. Owsley, 74 Tex. 71.) The character of the improvements claimed by Johnson to have been made by him are no more permanent than the hog pen which was held not to constitute such improvements in Bradley v. Owsley, above cited. The insignificance of the improvements made must relate to the value, and, if we consider in this case the improvements as being of the value of $15, as testified by Johnson, then to compare that with the contract price of the land, $1,100, we have the improvements as compared to the value of the land in the ratio of not exceeding one and one-half percent, and if they be considered as of the value of $5.50, which was shown by the statements of other witnesses to have been the value of the material used and labor expended thereon, then it would be about one-half of one percent of the contract price. If *Page 444 this improvement be not insignificant in value, then, indeed, the word "insignificant" loses its meaning when applied to the value of improvements of land under a verbal contract. We are of the opinion that Johnson's own testimony shows that he did not make such improvements upon the land as would entitle him to a specific performance of this verbal contract.
The Honorable Court of Civil Appeals declined to consider the third assignment of error under which we have made this investigation, but we are of opinion the assignment, the proposition and the statement sufficiently point out the error committed by the court and the facts upon which the assignment is based. Although it is made under what is called an argument, the statement of the facts is so separated that it could not be mistaken and gives the substance of the testimony of the witnesses upon the question, referring to the page of the transcript for the testimony of each witness and recites that the statement embraces the substance of all the testimony upon that particular issue. The Court of Civil Appeals erred in not considering the assignment of error.
H.H. and L.D. Cobb had the legal title to the house and lot in controversy. Johnson was in possession of the property under a void contract and refused to surrender the possession, which constituted probable cause for suing out the writ of sequestration, hence exemplary damages can not be awarded to Johnson. Culberson v. Cabeen, 29 Tex. 256; Kaufmann v. Runge,62 Tex. 238.
Johnson built upon the lot a chicken house worth not more than $15 and he had the use of the premises for a length of time that was worth $28. No actual damage has accrued to Johnson, and as he shows no right of action for damages, either actual or exemplary, shows no right to specific performance and admits in his answer the title of the Cobbs to the property, this court will enter the judgment which the District Court should have entered. It is therefore ordered that H.H. and L.D. Cobb recover of W.S.O. Johnson the lot in controversy. It is further ordered that W.S.O. Johnson take nothing by his plea in reconvention and that H.H. and L.D. Cobb go hence without day and recover of W.S.O. Johnson all costs of all of the courts.
Reversed and rendered.