cafpubs said:
I live in texas. 5 yrs ago our daughter died. at cemetary, we paid higher price for plots next to tree because salesman told us we could hang anything we wanted in tree. now 5 yrs later, cemetary changed policy without notifying us and is removing windsocks from tree and discarding them. we consider we have an oral contract, and we have witnesses. could we go to small claims court and request specific performance? any help here would be appreciated.
My response:
Small Claims court cannot give you "specific performance" on a contract. That court has no jurisdictional power or authority with which to render such a judgment. A Small Claims court judge can only render "money judgments".
Further, please take a look at your written contract. It probably says something in it about, "This is the entire contract, understanding and agreement, between the parties. Any oral statements not set to writing within this contract shall have no force or effect", or words along those lines.
If that is so, it doesn't matter whether you have an "Army of witnesses" to the oral agreement. It's what the written contract says that counts.
I'm sorry about your loss. It's a terrible shame and tragedy to lose a child. I'm sure she's smiling, and doing just fine.
IAAL
