L. T. Edwards v. B. J. Norton, 48 Tex. 291

Moore, Associate Justice. It is an elementary rule, that courts of equity will not enforce specific performance of a contract, unless its terms have been definitely understood and agreed upon by the parties, and clearly established by the evidence; and especially so, where the court is asked to decree specific performance of a parol contract for the sale of land, upon the ground of part performance. Neither must there have been an unreasonable delay in appealing to the court for its aid.

If there has been laches, or a manifestation of indifference on the part of the plaintiff as to the performance or enforcement of the contract, and particularly if there has been a greater material change in the condition or value of the property, or if circumstances have occurred tending to obscure the true character of the transaction, and to obliterate the evidence establishing or explaining it, such laches or delay must be satisfactorily explained, or the court will not decree its performance, but leave the party to seek his redress by an action at law.

Obviously, the petition of the plaintiff in this case is subject to criticism. We do not feel warranted, however, in saying that it was so defective as to have required the court below to sustain appellant’s general demurrer; or in our holding that the judgment should be reversed solely for its failure to do so, if in other respects it was unexceptional. But such is not the case. The evidence is even more unsatisfactory than the petition. It consists entirely of the unsupported testimony of the plaintiff.

It is vague and indefinite in several important particulars, and in some respects variant from the averments of the petition. There seems to have been no effort, by either party, to develop the facts and circumstances of the alleged contract and its supposed performance, as we must infer, from the nature of the transaction, might easily have been done. Both parties seem to have supposed their confused and flatly-contradictory statement would suffice for the proper disposal of the case.

The testimony of appellant is as unsatisfactory as that of appellee; hut he occupied the vantage-ground of a defendant in possession of tire property under written evidence of title, while the plaintiff relies merely upon his own oath to establish a parol contract concerning land, and such part performance of it as, notwithstanding the statute of fraud, would authorize a court of equity to decree the title.

Evidently, such a case is not to be determined, even by a jury, by the weight of oath against oath, when, so far as can be seen in the record, there is nothing to justify giving credit to one party or discredit to the other, or to turn the scale as between them. Aside from the fact that the plaintiff was contradicted by the defendant, if the unsupported oath of the plaintiff to a parol contract for the sale of land warrants a decree of title, the act to prevent frauds and fraudulent conveyances is of little effect in accomplishing the end for which it was intended.

We do not understand that this court has given any intimation which tends to warrant such a conclusion. (See Moreland v. Barnhart, 44 Tex., 283, and cases there cited, for rule in respect to parol evidence, to show that a deed absolute on its face was intended as a trust.) Nor is the charge of the court more satisfactory than the petition or evidence. It fails to present to the jury a full and satisfactory view of the issues involved in the controversy, and the principles and the rules of law by which they should be determined.

But if these were the only objections to the charge, as appellant failed to ask for any additional instruction, he would have no right to complain. The charge, however, is not only defective in regard to matters of omission, but is likewise erroneous as to those of commission.

It predicated the determination of one of the most important issues in the case upon a hypothesis not presented by the pleadings or authorized by the evidence, but directly in conflict with the plaintiff’s theory of his right to a recovery, and well calculated to mislead the jury, and induce them to suppose that the plaintiff' was entitled to a verdict on a state of facts which gives not the slightest color to such a conclusion.

The jury were, in effect, told that if the defendant had no just account against the plaintiff, or if he had not credited plaintiff with “ the value of the work and labor; and other claims held by the plaintiff against defendant,” they would conclude that the purchase-money for the lot in controversy had been paid. The only “ work and labor ” by the plaintiff, of which mention is made in the testimony, was done in improving the lot for which he is suing. Unquestionably, the court did not intend that the plaintiff, by his work and labor on this lot, paid the defendant for it.

But in view of the facts of this case, if they are properly presented by the transcript, this charge was evidently calculated to mislead and confuse the jury. The judgment is reversed and the cause remanded for a new trial. Reversed and remanded.