On Motion for Rehearing.
Appellees in a motion for rehearing, i supported by an able written argument, very . earnestly contend that the contract upon which appellant’s suit is based is in con- j travention of the statute of frauds. The j main ground of this contention is that under ; the decisions of our Supreme Court no oralj contract for the sale of land is enforceable, ! it matters not what equities may be shown i in favor of the vendee, unless he is shown to j have been placed in possession of the land ! by the vendor. That this is the general rule : in this state in regard to verbal sales or j gifts of land is well settled. Wooldridge v. Hancock, 70 Tex. 18, 6 S. W. 818; Bradley v. Owsley, 74 Tex. 69, 11 S. W. 1052.
In all of the cases, however, in which this rule is laid down the contract was one! of sale or gift of a specific tract of land, in ] which delivery of possession by the grantor j was not an impossible or unreasonable requirement as evidence of the sale or gift. The courts in announcing this rule did not have in mind a contract like the one in this case, which does not refer to any specific property, and from its very nature and purpose could not be evidenced by delivery of possession. The present enforcement of this contract after its full performance by the appellant will result in the transfer of title ¡ to land, but at the time the contract was ' made and at no time prior to the death of . Davis was it certain that any land would come within its operation, and the rule as ' to necessity for delivery of possession is not ’ applicable. The statement of our Supreme Court, in some of the opinions referred to, j that the court would not be inclined to ex-j tend the grounds upon which equity would ’ enforce an oral contract for the sale of •land is but the individual views of the member of the court delivering the opinion, and not binding as stare decisis upon any other court. ¡
It is further contended that because ! appellant is not shown to have been informed of the existence of the contract made for . him by his father, and his performance of the obligations imposed upon him by the contract not having been with reference thereto, no such equities in his favor arose ' from such performance as would entitle him j to an enforcement of the contract. We are not prepared to say that the finding of the court that appellant performed the contract, or his part, does not necessarily include the finding that appellant was informed of the existence of the contract, but we do not think it material whether or not he knew of the existence of the contract. The contract was made by his father for appellant’s benefit, and if performed by appellant, he is entitled to the consideration promised by the contract, regardless of whether or not he knew of its terms or existence. This was the holding in the case of Kofka v. Rosicky, cited in the main opinion. We adhere to the conclusion expressed in our main opinion that the contract is not within the statute of frauds, and in equity and good conscience should be enforced.
Appellees further contend that we erred in rendering Judgment for appellant, even if our conclusion that the contract is enforceable is sound, but should have remanded the cause for a new trial. There is nothing in the record which suggests that the facts were not fully developed upon the trial. It is fairly inferable from the record that appellees did not introduce any of the witnesses who testified on the trial, and the testimony ii^ the record is in the main uncontradicted, but this does not indicate that the facts were not fully developed.
Appellees state in their motion for rehearing that they confidently hope that upon another trial they will be able to produce testimony showing that the contract sued on was not in fact made, and that if it was made appellant did not perform its obligations. This is, in effect, asking this court to remand the cause for another trial to give appellees an opportunity to procure and introduce evidence contradicting the testimony introduced by appellant when if any such evidence exists the record offers no excuse for appellees’ failure to introduce it on the last trial. There was no ruling of the trial court, on exceptions or otherwise, by which appellees were misled as to the necessity of offering any evidence at their command material to the fact issues presented by the pleading. The whole case was submitted to the court on the facts and law, and a general judgment rendered in favor of appellees.. Having reached the conclusion that upon the facts found by the trial judge the appellant was under the law entitled to a judgment in his favor, and there being nothing in the record to suggest that the facts were not fully developed, and no matter of fact being necessary to be ascertained to enable us to render a proper judgment, we felt compelled, under article 1626 of the Revised Statutes, to render judgment for appellant, and we do not feel authorized by anything presented in the motion for rehearing to set aside that judgment.
The motion for rehearing is overruled.