
    HOUSTON, E. & W. T. RY. CO. v. SULLIVAN.
    (No. 1320.)
    (Court of Civil Appeals of Texas. Beaumont.
    Dec. 15, 1925.)
    Frauds, statute of 129(11)— Proof required to work equitable estoppel to defeat statute stated.
    To sustain verbal lease for three years on part of railroad right of way, it was incumbent on plaintiff to prove payment of rental, entry into possession, and erection of valuable improvements on leased premises to work equitable estoppel necessary to defeat statute.
    Appeal fro-m District Court, Nacogdoches County; C. A. Hodges, Judge.
    Action by J. H. Sullivan against the Houston, East & West Texas Railway Company. From judgment for plaintiff, defendant appeals.
    Reversed and rendered.
    Baker, Botts, Parker & Garwood and Garrison & Watson, all of Houston, for appellant.
    Adams & Moore, of Nacogdoches, for appel-lee.
   HIGHTOWER, C. J.

We take the following statement of this case from appellant’s brief, which is not questioned by appellee:

“This is a suit for damages which, as alleged in plaintiff’s original petition, were incurred by plaintiff by reason of the alleged breach by defendant of a parol lease of land for the term of three years, alleged to have been made and entered into by and between the plaintiff and the defendant on or about January 10, 1924.
“The defendant (appellant here) answered by general demurrer, several special exceptions, general denial, a plea setting up the statute of frauds, and a special allegation to the effect that all negotiations with reference to leasing appellant’s' right of way are subject to the approval of appellant’s vice president and general manager, and that no one had authority to enter into such contract without first securing the approval and signature of appellant’s vice president and general manager.
“Plaintiff, by supplemental petition, admitted, that the contract for the lease of appellant’s right of way was verbal, but pleaded payment of rental for the first year, and entry into possession and the-placing of valuable improvements upon the land.”

The trial was bad with a jury, and resulted in a verdict and judgment in favor of ap-pellee for $550. No useful purpose would be served by stating the issues submitted to the jury or the charge of the court in any respect.

It is clear from the record in this case that the contract, the breach of which was relied upon for recovery by appellee, was a verbal agreement made between himself and appellant’s superintendent, under tire terms of which, as appellee claims, appellant leased to him ■>. part of its right of way, described in his petition, for a period of three years. It was contemplated that appellee was to construct and build upon this leased land a shell or gravel rack to be used by him in furnishing and delivering shell and gravel to Shelby county for the construction of roads, etc. Ap-pellee alleged and testified that in making this verbal agreement with appellant’s superintendent he contemplated entering into a contract with Shelby county to furnish that county shell and gravel, and he desired to build the shell or gravel rack at the particular point on appellant’s right of way, described in his petition, because it would be a much closer haul for him in handling the shell and gravel than he would otherwise have, and that, therefore, he could make more money out of his contract with Shelby county. The testimony showed that he did afterwards secure a contract with- Shelby county, as he had contemplated, but that appellant declined to let him have possession of that portion of its right of way covered by the verbal lease, and that he had to use another loading rack, and haul the shell and gravel at a materially greater distance. Ap-pellee’s evidence showed that he did pay to appellant’s local agent at Appleby, Tex., $12, which was the agreed rental for the land covered by the verbal contract for the first year, but the evidence further showed without dispute that he had never entered into posscsr sion of this land or any portion of it, and that he had never constructed any character of improvements upon it.

Counsel for appellee have filed no brief in this case, and, therefore, we are left in the dark as to appellee’s theory for upholding this judgment. We sustain appellant’s third proposition, which is fully supported by the pleadings and the undisputed evidence in this case. It is as follows:

“Where plaintiff’s suit for damages is based on the breach of a parol agreement to lease land for a term of three years, and defendant answered by way of general denial and a special plea, invoking the statute of frauds, plaintiff then must plead, and has the burden of proving, facts sufficient to take the parol agreement out from under the force and effect of the statute; and where, on the trial of the ease before a jury, plaintiff fails to prove entry into possession with the consent or acquiescence of the defendant and valuable improvements made on the leased premises in reliance on said verbal agreement, the court should, on request, instruct the jury to return a verdict for the defendant.”

As we have stated, there was absolutely no proof showing that appellee ever entered into possession of the claimed leased premises, or that he ever constructed any character of improvement whatever thereupon. In order to sustain his verbal lease, even if the superintendent had authority to make it, it was incumbent upon appellee to prove payment of the price, his entry into possession, and the erection hy him of valuable improvements upon the leased premises, to work the equitable estoppel necessary to defeat our statute of frauds. Hooks v. Bridgewater, 111 Tex. 122, 229 S. W. 1114, 15 A. L. R. 216; Page v. Vaughan (Tex. Civ. App.) 173 S. W. 541; Pitts v. Kennedy (Tex. Civ. App.) 177 S. W. 1016; Jones v. National Cotton Oil Co., 31 Tex. Civ. App. 420, 72 S. W. 248; Sonnenberg v. Ernst (Tex. Civ. App.) 233 S. W. 564.

It follows from the above conclusions that the judgment in this case must be reversed and here rendered in favor of appellant, and such is the order of this court. 
      
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