A. Thouvenin v. F. M. Lea, 26 Tex. 612

Moore, J. There was no error of which appellant can complain in the ruling of the court upon his general demurrer. The demurrer should no doubt have been overruled. That it was not, caused no injury to appellant. The allegations of the petition were sufficient to show that the plaintiff was entitled to the relief asked by him with reference to which the petition was sustained. If a prayer for relief to which the plaintiff is not entitled was also embodied in his petition, the opposite party cannot complain that it has been at his instance stricken out by the court.

If there was any doubt as to the sufficiency of the original petition as an action for the recovery of pay for the improvements made upon appellant’s land, this was clearly removed by the amended petition. Nor should the exceptions to the amended petition, upon the ground that it set up a new cause of action which was barred previous to the filing of the amendment, have been sustained by the court.

The cause of action presented in the original petition was the breach of contract in the sale by parol of a tract of land, by reason of which, it was alleged, appellant became liable to pay for the improvements made upon the land. The amended petition merely enlarges and states more fully and accurately the facts, with reference to the same contract' upon which the original petition was based. It only states an additional stipulation in the agreement between the parties, which was omitted in the original petition. It enlarges but in no manner contradicts the allegations previously made.

The very object of an amendment is to supply the omissions of the original pleadings. And it never has been supposed that the statute of limitations would present any impediment to its being done at any time during the progress of the cause. The statute only operates as a bar when it is sought under the name of an amendment to present a new suit. Neither did the statute of frauds interpose any impediment to-the plaintiff’s right of recovery.

By the contract the appellant agreed, if there was a failure to complete the contract, or for any reason it was abandoned, that he would pay for the improvements made upon the land. There is nothing from which it can be inferred that the failure to complete the contract, (by reducing" it to writing, for instance, as was stipulated should be done,) or its' abandonment might not occur within a year from the time it was consummated. The purchaser, it is true, was entitled, by the agreement, to a credit of five years for the payment of the. purchase money, if the contract had been reduced to writing.

But appellant might have sold to another, or the contract might have been abandoned by the purchaser at any time, and upon this alone depended appellant’s liability for the improvements. An agreement which may or may not be performed within a year, is not required by the statute of frauds to be in writing; it must appear from the agreement itself that it is not to be performed within a year. Roberts on Frauds, 188; Kent v. Kent, 18 Pick., 864; Smith v. Bradley, 1 Root, 150; Ives v. Gilbert, Id., 89; Russell v. Slade, 12 Conn., 455; Moore v.

Fox. 10 Johns, 244.) Nor is a parol contract to pay for the improvements upon land within the statute of frauds as a sale of an interest in land. (Lower v. Winters, 7 Cow., 263; Godeffrey v. Caldwell, 2 Calif., 489; 4 Kent, 450.) And without an agreement by the appellant he would have been bound upon a refusal to complete the contract for the sale of the land, to have paid the purchaser for the improvements, if beneficial to him. In Lockwood v.

Barnes, 3 Hill, 128, it is said, “ One who refuses to complete an agreement which is void by the statute of frauds, after receiving a benefit from a part performance, must pay for what he has received.” (See also Story’s Equity, sec. 1237; Saunders v. Wilson, 19 Tex., 194; Id., 201; Patrick v. Roach, 21 Tex., 251.) It does not appear from the agreement, if the contract between appellant and D. D. Lea was abandoned, that the former was entitled to offset the rent of the premises against the improvements for which he agreed to pay.

Appellant cannot therefore complain that no rents were allowed him for the land during said Lea’s lifetime. Nor would he, probably, aside from the contract, have been entitled to anything on this account. The premises were altogether unimproved when Lea went upon them, he raised but two crops upon the land, and the larger portion of it was not cleared until the second year. The rents, therefore, for it during that time could have been worth but little more than interest on the value of the improvements, and were probably considered by the parties when the contract was made as balancing each other.

If any rents accrued previous to the sale of the land by appellant, while it was in appellee’s possession, the jury were instructed to allow appellant for them. We cannot say that they failed to do so. The appellant did not show that he was entitled to the rent of the premises after he parted with the title for the land. That he was compelled to pay his vendor damages for the breach of his special covenant to put him in possession of it on a given day, by no means shows that he was entitled to claim from the occupants of the land damages for its detention after he had parted with his title to it.

The'other exceptions to the ruling of the court below, not having been insisted on by counsel in their argument, may be regarded as abandoned, and need not therefore be adverted to by us. The judgment is affirmed. Judgment affirmed.