Epitomized Opinion

‘Suit by Poland to recover $1000 claimed as balance due him from the gas company upon a contract to secure gas and oil leases. Verdict for Poland upon which gas company files petition in error on grounds that contract sued on is within statute of fraud, that there is a variance in the proof as to the contract sued up-, on, and that the court erred in refusing to, charge relative to the statute of fraud. Court of appeals affirming the judgment below,'held:

1. That though the contract relied upon.is not one in writing there was such an execution and carrying out of the terms ■ of the contract as to take it .out of the statute of frauds.

■ 2. Testimony in the case does not .warrant claiming of a variance in the proof.

3. Propositions of law set forth in the special request of the gas company to be charged to the jury, stating that the case was one within the statute of frauds, were not applicable to the issues raised in the ease.

4. There was no prejudical error submitted and substantial justice has been dealt.