
    BELCHER v. SCHMIDT.
    (Court of Civil Appeals of Texas.
    Oct. 22, 1910.)
    1. Frauds, Statute of (§ 133) — Operation-Performance of Contract.
    The statute of frauds (Sayles’ Ann. Civ. St. art. 2543) has no application to a contract to transfer a lease of land' belonging to the public school fund and to assist the purchaser of the lease in purchasing the land from the state, where the plaintiff has performed the contract and the defendant has received the benefit of the performance.
    [Ed. Note. — For other cases, see Frauds, Statute of, Cent. Dig. §§ 293-298; Dec. Dig. § 133.]
    2. Contracts (§ 332) — Actions for Breach —Pleading.
    A petition alleging a parol contract whereby plaintiff agreed to transfer to defendant a lease of land belonging to the public school fund and to assist defendant in purchasing the land, for which defendant agreed to pay plaintiff $1 per acre for such amount as defendant should purchase, and alleging that the lease had been transferred, that defendant had purchased a large tract of the land at $2 per acre, that plaintiff had counseled and assisted defendant in making purchase, and that defendant was about to bid $5 per acre for the land, but at the advice of plaintiff bid only $2 per acre, is not subject to special exceptions that it failed to show any benefit accruing to defendant by the performance of plaintiff’s obligation under the contract, that it was insufficient in failing to allege how much plaintiff claimed for his advice to defendant to bid $2 per acre only for the land, and that it failed to show what obligations imposed upon him by the contract were discharged.
    [Ed. Note — For other cases, see Oontracts, Dec. Dig. § 332.]
    3. Contracts (§ 334) — Pleading.
    An alternative pleading on quantum meruit for the value of a lease of land belonging to the public school fund transferred to defendant and the value of counsel, advice, and other assistance to defendant in purchasing the land, was not subject to a special exception for failing to itemize separately the value of the counsel, advice, and other assistance, and the value of the lease transferred.
    [Ed. Note. — For other cases, see Contracts, Dec. Dig. § 334.]
    Appeal from District Court, Dawson County; Jas. L. Shepherd, Judge.,
    Action by John H. Belcher against F. W. Schmidt. From a judgment for defendant, plaintiff appeals.
    Reversed and remanded.
    J. E. Garland, for appellant. S. A. Penis and S. H. Morrison, for appellee.
    
      
       For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   DUNKLIN, J.

John H. Belcher sued F. W. Schmidt, alleging in his petition that he entered into a parol contract with the defendant, by the terms of which plaintiff agreed to transfer to the defendant a certain lease then held and owned by plaintiff on four tracts of land belonging to the public free school ftind of the state, and also to aid and assist the defendant to purchase the land from the state, and that in consideration therefor défendant agreed to pay plaiptiff at the rate of $1 per acre for all of said land which defendant should so purchase as soon as he should acquire title from the state. Plaintiff further alleged that at the time said agreement was made he was in possession of all the information relating to the time and manner of the sale of the land by the state; that defendant desired to purchase it, but was not informed as to the time and manner it would be sold. It was averred further that in pursuance of the agreement plaintiff executed and delivered to defendant a transfer in writing conveying plaintiff’s rights, under the lease; also delivered to defendant possession; that defendant immediately took possession of the land and held and enjoyed the same together with all the fruits thereof. According to other allegations in the petition, 'the agreement between plaintiff and defendant was made December 20, 1904, the transfer of the lease was made on or about the same date, the Commissioner of the General Land Office advertised the land to be sold to the highest bidder on April 20, 1906, and on that date defendant purchased a large portion of it for $2 per acre upon his written applications therefor, which were forwarded by him to the Land Commissioner. Plaintiff alleged that after the land was advertised for sale he, in pursuance of said agreement, advised, .counseled, and aided defendant in the preparation of his applications to purchase it, and that during the preparation of the applications defendant was about to submit bids to purchase the lands at $5 per acre, but was induced by plaintiff to refrain from so doing and to bid $2 per acre only. In an alternative plea plaintiff alleged that the lease transferred by him to defendant, together with the services rendered by him in aiding defendant to purchase, mentioned above, were reasonably worth $1,-750, for which sum he prayed judgment in the event he should be denied a recovery on the alleged contract. A failure and refusal by defendant to pay plaintiff any sum for the transfer of the lease or for services rendered by plaintiff in pursuance of said agreement was also alleged. The trial court sustained a general demurrer to the suit to recover on the alleged contract, also sustained all of defendant’s special exceptions to both counts in the petition, and, plaintiff haying declined to amend, judgment was rendered, which was essentially a dismissal of plaintiff’s suit. From that judgment, plaintiff has prosecuted this appeal.

The contention presented by one of the special exceptions was that the contract alleged, being in parol, could not be enforced because in contravention of the statute of frauds. Accepting the allegations in the petition as true,.plaintiff had transferred the lease to the defendant, delivered possession of the land, and had rendered all the services which he had agreed to perform. Defendant had accepted the lease, had gope into possession of the land, and had used it. If, in any event, it could be said that the agreement when first made came within the purview of our statute of frauds (Sayles’ Ann. Civ. St., art. 2543), that statute had no application after plaintiff had fully performed the obligations imposed upon him by the terms of the contract and defendant had accepted the benefits of such performance. Showalter v. McDonnell, 83 Tex. 158, 18 S. W. 491.

There was also error in the rulings of the trial court upon special exceptions in holding that the petition failed to show any benefits accruing to defendant by the performance of plaintiff’s obligations under the contract; that the petition was insufficient, in that it failed to allege how much plaintiff claimed for his advice given defendant to bid $2 per acre only for the land; that it failed to show what obligations imposed upon him by the contract were discharged; and that the alternative plea to recover on a quantum meruit was insufficient in failing to itemize separately the values of the counsel, the advice, and other assistance rendered to defendant, and the value of the lease transferred. In view of the allegations contained in the petition above noted, there was no merit in the defendant’s general demurrer.

For the errors indicated, the judgment of the trial court is reversed and the cause remanded.  