
    No. 20,203.
    Richard C. Tolley v. C. A. Fritsinger.
    (374 P. [2d] 364)
    Decided July 23, 1962.
    Rehearing denied September 17, 1962.
    Mr. William G. Sumners, Jr., Mr. Thomas C. Chapin, for plaintiff in error.
    
      No appearance for defendant in error.
    
      En Banc.
    
   Mr. Justice Sutton

delivered the opinion of the Court.

Fritsinger sued Tolley for $200.00, alleging it to be the balance due him on Tolley’s agreement to pay $250.00 for an interest in a certain oil well being drilled at the time of the sale. Judgment was for Fritsinger in the trial court and Tolley seeks reversal by writ of error.

We have examined the record and find that though Fritsinger’s testimony was in part ineffectually presented, there is nevertheless some evidence to sustain the judgment of the trial court. There is, for example, a signed receipt showing the payment of $50.00 on account with a balance of $200.00 due. Tolley chose not to appear at the trial in person though his attorney was present on his behalf.

No evidence was offered by Tolley to overcome the prima facie case made by Fritsinger. The copy of the written receipt given by Fritsinger to Tolley, introduced in evidence by the former, as well as the partial performance, are sufficient to take the contract from under the protection of the statute of frauds (C.R.S. ’53, 59-1-8).

If the well had been a producer instead of a dry hole it appears obvious that Tolley would have had some basis under the facts presented to enforce a claim for his interest against Fritsinger; this being so the judgment must be affirmed.

Mr. Justice McWilliams not participating.  