Texas Construction Law Updates


Partial performance can overcome the absence of a written contract

Aaron Capps - Wednesday, November 15, 2017

In Thomas v. Miller, the lack of a written contract became the focal point of the dispute. Leorris Thomas verbally agreed to sell two acres of land to the Millers in exchange for payment of the amount remaining on Thomas’s mortgage. The Millers paid Thomas’s mortgage from 2004 to 2010 and made improvements to the property during that time. However, continual threats from Thomas caused the Millers to abandon the property in 2009. Thomas subsequently sold it to a third party.

The Millers sued and won their lawsuit against Thomas for breach of contract. Thomas appealed claiming the oral contract was unenforceable under the statute of frauds, which considers certain agreements unenforceable for a variety of reasons, including when they are not in writing.

The appellate court found the partial performance by the Millers was sufficient to trigger an exception to a statutory requirement for the contract to be in writing. It also found that refusing to enforce the contract would amount to a virtual fraud. The Millers relied on the contract to their substantial detriment, had no adequate remedy, and Thomas would reap an unearned benefit. The appellate court therefore affirmed the trial court’s ruling and enforced the oral contract.


The attached information is general in nature, is presented for discussion purposes only, and may not reflect current legal developments, nor fully explore all potential areas of this topic. The information included should not be relied upon or construed as legal advice and is not a substitute for obtaining legal advice from an attorney. No legal representation is undertaken or implied with the distribution of this information.

Copyright © 2018 Griffith Davison & Shurtleff, P.C. All rights reserved.

top