NYE, Justice.
This is a suit for damages resulting from the landlord’s unauthorized entry on leased premises. Appellee, A. C. Carte, leased from appellants, Charles McKenzie and Robert McKenzie, the second floor premises at 4428 Highway 9, Corpus Christi, Texas, where he and various sub-lessees operated a private club. The appellants, as lessors, evicted appellee and his sub-lessee B. M. Westover, an interveno- in the suit below, from the premises. Appellee brought suit seeking a temporary restraining order and temporary injunction to gain possession of the premises, and damages for the wrongful dispossession on the part of the appellants. Appellants answered and filed a cross-action seeking damages for alterations made by the appellee and Westover to the premises. Westover, as intervenor, filed a cross-action against appellee and appellants, seeking a declaration that he is the owner of the furniture and equipment located in the premises and for damages for the wrongful ejection of him by the appellants. The trial court awarded damages to appellee Carte, and a take-nothing judgment was entered against appellants McKenzie and intervenor Westover. 'West-over did not perfect his appeal.
In September, 1953, appellee approached appellants in regard to obtaining a lease of the premises owned by the appellants for the purpose of operating a private club. A lease agreement was entered into wherein the appellants granted the appellee a ten-year lease beginning January 1, 1954, and ending December 31, 1963, with a ten-year option thereafter. The rental for the primary term was $35,100.00, with the first month and the last three months’ rental to be paid in advance; calling for $275.00 [523]*523per month rental during the first year and $300.00 per month thereafter for the full term of the lease. The rental during the ten-year option period, was to be $36,000.00, payable $300.00 per month. To exercise the option to extend the lease, appellee was to notify appellants in writing during the month of November, 1962, some thirteen months before the expiration of the primary term. Appellee operated the private club personally for several years and thereafter sub-leased the premises to various sub-tenants who paid appellee a bonus over and above the monthly rental due under the lease. The lease agreement provided in paragraph 6 that: “In the event Lessee (ap-pellee) sub-leases or assigns said premises Lessee shall remain personally liable for payment of the rental consideration.”
Appellee’s operations from the beginning until he was locked out by the appellants were successful. In January, 1957, appel-lee sub-leased the premises to C. O. Scott for $900.00 a month, $300.00 of which was to be paid to appellants and $600.00 to be paid to him. Subsequently, appellee released the premises to Scott for one year for the sum of $8,800.00, $3,600.00 of which was to be paid to the appellants at the rate of $300.00 a month, and $5,200.00 to be paid to him at the rate of $100.00 per week. Subsequently, appellee sub-leased the premises to Mr. J. B. Rathmell for a two-year period for a rental of $700.00 per month, $300.00 of which was to be paid to appellants, and $400.00 per month payable to him. On or about October 19, 1960, Rathmell made a deal with Westover to take over the premises, with Westover paying Rathmell $2,500.00 cash. Westover was to pay the appellants $300.00 per month and the appellee $400.00 per month. This deal was to be subject to the approval of the appellee. Rathmell and Westover contacted the appellee and he agreed to accept West-over on a trial basis. Westover paid the appellants $300.00 and the appellee $400.00, at which time the appellee gave Westover a receipt which stated: “Received of: B. M. Westover $400.00 (four Hundred Dollars) for one month rent Oct 19 to Nov 19th for Oil Patch rent — At which time a lease will be drawn and the first & last month will be deposited — $800.00.” The appellants accepted the monthly rental from all of the sub-lessees.
On the 11th day of November, 1960, ap-. pellants changed the lock on the premises, refusing to let Westover in the premises. Appellee contacted the appellants in an attempt to ascertain the reason for the evic- ^ tion. The appellants informed appellee that they did not like the way Westover was operating the club and therefore they were locking appellee, as well as Westover, out of the premises and they (the appellants) were re-taking the property.
Eleven days after the eviction the ap-pellee filed this suit seeking immediate possession of the premises by way of a temporary restraining order, alleging that such eviction did in effect destroy his profitable business of operating a private club. Ap-pellee further alleged that: he had made extensive improvements to the premises in the amount of $35,000.00; that the damages to his operations were in the amount of $80,000.00; by supplemental petition he alleged that he had sub-leased the premises for $700.00 per month, $300.00 of which was to be paid to the appellants and $400.00 per month was to be paid to him; and that by reason of the dispossession he had been deprived of this income for the unexpired term of the lease and for the ten-year option period which the appellants had destroyed by reason of the wrongful eviction. The record does not indicate the disposition of appellee’s application for temporary restraining order and temporary injunction. The case was tried before the court without a jury in May, 1962, and judgment was entered in October, 1963, just prior to the expiration of the primary term of December 31, 1963.
The appellants asserted three theories of defense to their action in evicting the ap-pellee from the premises. First, that the appellee did not have the right to sub-let [524]*524the premises ta Westover or the other sub-lessees; second, nonpayment of the rent due under the lease; and third, that the appellee had permitted the operation of an illegal business and that he had permitted the premises to become a common nuisance because of such operations. The trial court filed thirty-two separate Findings of Fact and eleven Conclusions of Law in support of its judgment. The trial court found against the appellants to the effect that the appellee did have the right to sub-lease the premises and that the appellants had accepted such sub-lessees, including West-over. The court further found that the rents due under the lease had been paid and accepted up to the time of the eviction in November, 1960. The appellants do not attack these findings on appeal.
The controlling question on this appeal 'is the amount of damages awarded to the appellee. The appellants, as well as the appellee by cross points, contend that the trial court erred in awarding damages in the amount of $7500.00.
Appellants' assign two points of error to this Court. In their first point, appellants complain that: “The adjudication in the trial court’s final judgment adjudging that appelleé recover $7,500 from appellants is .not' supported by the material trial court .formal -findings of fact or by any conclusive evidence.”
■It was undisputed in the record that the lease provided for a ten-year primary term with ¿i ten-year option. The appellants .evicted.the appellee from the premises after he had Reen in possession seven years. .The. appellee testified, without objection or contradiction, that he had been making $7,80Q.00 a year profit from the operation of the club while he was the operator and that in all reasonable probability the place of business would make $7,800.00 a year for the three remaining years of the primary term, that is, from 1960 through 1963.
Free access — add to your briefcase to read the full text and ask questions with AI
NYE, Justice.
This is a suit for damages resulting from the landlord’s unauthorized entry on leased premises. Appellee, A. C. Carte, leased from appellants, Charles McKenzie and Robert McKenzie, the second floor premises at 4428 Highway 9, Corpus Christi, Texas, where he and various sub-lessees operated a private club. The appellants, as lessors, evicted appellee and his sub-lessee B. M. Westover, an interveno- in the suit below, from the premises. Appellee brought suit seeking a temporary restraining order and temporary injunction to gain possession of the premises, and damages for the wrongful dispossession on the part of the appellants. Appellants answered and filed a cross-action seeking damages for alterations made by the appellee and Westover to the premises. Westover, as intervenor, filed a cross-action against appellee and appellants, seeking a declaration that he is the owner of the furniture and equipment located in the premises and for damages for the wrongful ejection of him by the appellants. The trial court awarded damages to appellee Carte, and a take-nothing judgment was entered against appellants McKenzie and intervenor Westover. 'West-over did not perfect his appeal.
In September, 1953, appellee approached appellants in regard to obtaining a lease of the premises owned by the appellants for the purpose of operating a private club. A lease agreement was entered into wherein the appellants granted the appellee a ten-year lease beginning January 1, 1954, and ending December 31, 1963, with a ten-year option thereafter. The rental for the primary term was $35,100.00, with the first month and the last three months’ rental to be paid in advance; calling for $275.00 [523]*523per month rental during the first year and $300.00 per month thereafter for the full term of the lease. The rental during the ten-year option period, was to be $36,000.00, payable $300.00 per month. To exercise the option to extend the lease, appellee was to notify appellants in writing during the month of November, 1962, some thirteen months before the expiration of the primary term. Appellee operated the private club personally for several years and thereafter sub-leased the premises to various sub-tenants who paid appellee a bonus over and above the monthly rental due under the lease. The lease agreement provided in paragraph 6 that: “In the event Lessee (ap-pellee) sub-leases or assigns said premises Lessee shall remain personally liable for payment of the rental consideration.”
Appellee’s operations from the beginning until he was locked out by the appellants were successful. In January, 1957, appel-lee sub-leased the premises to C. O. Scott for $900.00 a month, $300.00 of which was to be paid to appellants and $600.00 to be paid to him. Subsequently, appellee released the premises to Scott for one year for the sum of $8,800.00, $3,600.00 of which was to be paid to the appellants at the rate of $300.00 a month, and $5,200.00 to be paid to him at the rate of $100.00 per week. Subsequently, appellee sub-leased the premises to Mr. J. B. Rathmell for a two-year period for a rental of $700.00 per month, $300.00 of which was to be paid to appellants, and $400.00 per month payable to him. On or about October 19, 1960, Rathmell made a deal with Westover to take over the premises, with Westover paying Rathmell $2,500.00 cash. Westover was to pay the appellants $300.00 per month and the appellee $400.00 per month. This deal was to be subject to the approval of the appellee. Rathmell and Westover contacted the appellee and he agreed to accept West-over on a trial basis. Westover paid the appellants $300.00 and the appellee $400.00, at which time the appellee gave Westover a receipt which stated: “Received of: B. M. Westover $400.00 (four Hundred Dollars) for one month rent Oct 19 to Nov 19th for Oil Patch rent — At which time a lease will be drawn and the first & last month will be deposited — $800.00.” The appellants accepted the monthly rental from all of the sub-lessees.
On the 11th day of November, 1960, ap-. pellants changed the lock on the premises, refusing to let Westover in the premises. Appellee contacted the appellants in an attempt to ascertain the reason for the evic- ^ tion. The appellants informed appellee that they did not like the way Westover was operating the club and therefore they were locking appellee, as well as Westover, out of the premises and they (the appellants) were re-taking the property.
Eleven days after the eviction the ap-pellee filed this suit seeking immediate possession of the premises by way of a temporary restraining order, alleging that such eviction did in effect destroy his profitable business of operating a private club. Ap-pellee further alleged that: he had made extensive improvements to the premises in the amount of $35,000.00; that the damages to his operations were in the amount of $80,000.00; by supplemental petition he alleged that he had sub-leased the premises for $700.00 per month, $300.00 of which was to be paid to the appellants and $400.00 per month was to be paid to him; and that by reason of the dispossession he had been deprived of this income for the unexpired term of the lease and for the ten-year option period which the appellants had destroyed by reason of the wrongful eviction. The record does not indicate the disposition of appellee’s application for temporary restraining order and temporary injunction. The case was tried before the court without a jury in May, 1962, and judgment was entered in October, 1963, just prior to the expiration of the primary term of December 31, 1963.
The appellants asserted three theories of defense to their action in evicting the ap-pellee from the premises. First, that the appellee did not have the right to sub-let [524]*524the premises ta Westover or the other sub-lessees; second, nonpayment of the rent due under the lease; and third, that the appellee had permitted the operation of an illegal business and that he had permitted the premises to become a common nuisance because of such operations. The trial court filed thirty-two separate Findings of Fact and eleven Conclusions of Law in support of its judgment. The trial court found against the appellants to the effect that the appellee did have the right to sub-lease the premises and that the appellants had accepted such sub-lessees, including West-over. The court further found that the rents due under the lease had been paid and accepted up to the time of the eviction in November, 1960. The appellants do not attack these findings on appeal.
The controlling question on this appeal 'is the amount of damages awarded to the appellee. The appellants, as well as the appellee by cross points, contend that the trial court erred in awarding damages in the amount of $7500.00.
Appellants' assign two points of error to this Court. In their first point, appellants complain that: “The adjudication in the trial court’s final judgment adjudging that appelleé recover $7,500 from appellants is .not' supported by the material trial court .formal -findings of fact or by any conclusive evidence.”
■It was undisputed in the record that the lease provided for a ten-year primary term with ¿i ten-year option. The appellants .evicted.the appellee from the premises after he had Reen in possession seven years. .The. appellee testified, without objection or contradiction, that he had been making $7,80Q.00 a year profit from the operation of the club while he was the operator and that in all reasonable probability the place of business would make $7,800.00 a year for the three remaining years of the primary term, that is, from 1960 through 1963. The record further showed that the lease had a rental value of $700.00 per month while the stipulated rent payable to the appellants was $300.00 a month, leaving a net to the appellee of $400.00 a month. This was the amount of profits that the appellee was making at the time of the eviction. One expert witness testified, without objection, that the lease had a net market value to the appellee, after being discounted for cash, for the balance of the term of three years and during the ten-year option period, of $48,000.00.
Upon the request of the appellants the trial court filed separate formal findings of fact. Included in these findings of fact are the following:
“24. Plaintiff, under the terms of the lease, had an option to extend the lease for a period of ten (10) years from the end of the primary term.
“25. Such option had to be exercised before the end of November, 1962, while such lease was in full force and effect.
“26. By closing the premises, Defendants damaged the Plaintiff by destroying a profitable business, i. e., that of furnishing and equipping a place for the members of the private club to meet.
“27. The Defendants, by locking Plaintiff and his sub-tenants out of the premises, destroyed the value of the option for the additional 10 years.
“28. The Plaintiff would, in reasonable probability, have exercised the option for an: additional 10 years had the eviction not occurred.
“29. The Plaintiff would, in reasonable probability, have realized a profit during such option. After deducting rental payments, maintenance, replacement and other costs, the sum of Seventy five Hundred Dollars ($7500.00), if paid now in cash,, -would reasonably compensate the Plaintiff for such lost profits.”
[525]*525The Court concluded that:
“10. The loss or damages sustained by the Plaintiff as the result of being excluded from his leasehold are the profits he would in reasonable probability have received had the lease not been terminated by Defendants.
“11. That the damages sustained by Plaintiff were the natural and probable result of the Defendants’ act in excluding Plaintiff from his leasehold.”
We hold that the formal findings of fact found by the trial court support a judgment awarding appellee the sum of $7500.00 as compensation for the destruction of the value of the appellee’s option to extend the lease for an additional ten years and that there was sufficient evidence to support such findings. Appellants’ first point is overruled.
Appellants’ second point states that:
“The trial court formal finding of fact that $7500 would reasonably compensate appellee for loss of profits during the option period does not establish and is not germane to any element of any ground of recovery asserted or established by appellee and hence affords no support for the adjudication in the trial court final judgment that appellee recover $7500 from appellants; accordingly, the trial court committed reversible error in relying on such finding as support for such adjudication and in including it in said judgment.”
Appellants contend in effect that the trial court’s judgment was based solely on finding of fact number 29 and that this is not germane to any ground of recovery asserted by the appellee. Appellants argue that appellee sought an adjudication that the lease was in full force and effect and that appellee did not plead or seek any damages as part of that ground of recovery. This part .of appellants’ point number 2 is not well taken. The original petition Was apparently filed' while there was still some hope that appellee’s business could be preserved and although it did contain a prayer for injunctive relief in hopes that the business could be preserved, it also prayed for damages caused by such illegal and unlawful dispossession from the premises. Appellee plead in his original petition: “That this overt, unlawful and dispossession by force on the part of lessors, with malice and with the willful intent to harm, damage and deprive plaintiff of his valuable leasehold estate and of the valuable improvements that he has placed upon such premises and further, with the intent to deprive him of the valuable option to renew and extend such lease for an additional period of ten (10) years, has resulted in damage and will result in irreparable damage to plaintiff.” The petition and the supplemental petition contained other allegations of wrongful acts causing damages to the appellee. Appellee’s supplemental petition alleged that: “ * * * By reason of the unwarranted, unlawful dispossession by force on the part of the defendant, the plaintiff has been deprived of the income in excess of the monthly rental, to-wit, the sum of Four Hundred Dollars ($400.00) per month for the unexpired term of the lease and the period of the option to which he was entitled and in reasonable probability would have exercised, * * The entire record discloses that the case was tried upon the theory that the wrongful eviction by the appellants damaged the ap-pellee during the period of time that the appellee had been excluded from the premises, (the remaining period of the primary term) and damages for the ten-year option period. There were no exceptions made by the appellants to the appellee’s pleadings. We hold that there was sufficient notice set forth in the original and supplemental petitions, unobjected to by the appellants, to apprise the appellants of the cause of action asserted by the ap-pellee. Even if the issues and the theories upon which the case has been tried are not raised by the pleadings but are tried by' consent of the parties, they are treated [526]*526as if they had been raised in the pleadings and a failure to amend to conform to the evidence does not affect the result of the trial on such issues. Rule 67, Texas Rules of Civil Procedure; 46 Tex.Jur.2d 191, § 290; 46 Tex.Jur.2d 84, § 230, and the cases cited therein. In fact, under cross examination by intervenor’s attorney, appellee was asked if he was not seeking damages for the remainder of the term of the lease and for the termination of the option, which he answered in the affirmative, without objection.
Appellants argue as the second part of this point number 2, that the appellee was put to an election of remedies, in that he could either accept the repudiation of the lease and treat the lease as being at an end and sue for damages proximately resulting and that might result because of such repudiation, or he could elect not to accept the repudiation and treat the lease as being in existence and could seek to enforce it by suing for recovery of possession and for damages sustained by him on account of deprivation of the use of the premises. Appellants argue that the appellee is seeking inconsistent relief and that appellee has two or more remedies and by pleading one of such remedies he is estopped to as-se'rt and recover on any other right. This point is not well taken. The appellee was entitled to plead and prove inconsistent causes of action and alternative relief. Rule 47 and Rule 48, T.R.C.P.; 52 Tex.Jur.2d 671, § 121. The essential conditions in the election of remedies is the existence of two or more remedies, an inconsistency between such remedies, and the choice of one of them in the actual pursuit of one to the exclusion of others. 21 Tex.Jur.2d 199-200, § 5.
The appellants contend, however, that since appellee sued originally for possession of the premises and the trial court in effect gave him possession, he is not entitled to damages for loss of profits during the option period. That portion of the judgment the appellants refer us to is where the trial court declares that the lease is to be in full force and effect; however, during the period of time from the eviction until the date possession is restored to the appellee, the rental due and to fall due under such lease agreement shall be abated. The judgment does not grant possession to the appellee. Even if it had, it would have been only for the remaining period of the primary term of two and one third months. Neither the appellee nor the trial court attempted to exercise the option to extend the lease beyond the primary term, nor have appellants asserted that this took place. It therefore holds that an award of $7500.00 in damages for loss of profits for destruction of the option by the appellants is not inconsistent in permitting the appellee to have possession for the remaining period of the primary term of the lease if the appellants are willing.
Appellants contend on this appeal for the first time that appellee elected to refuse to accept appellants’ repudiation of the lease. The trial court did not make any findings of fact or conclusions of law to support this contention. The appellants did not object to the findings of fact filed nor did they request any additional findings or conclusions of law. The appellants did not urge the defense of election of remedies in the actual trial of the case, nor did they plead such defense. Betty v. Tuer, 292 S.W. 271 (Tex.Civ.App.1927); Holland Texas Hypotheek Bank v. Broocks, 266 S.W. 183 (Tex.Civ.App.1924, wr. ref.) ; Nelson v. Seidel, 328 S.W.2d 805 (Tex.Civ.App.1959, wr. ref. n. r. e.).
In 21 Tex.Jur.2d 210, § 11, Election of Remedies, it is said:
"The defense of election of remedies, if relied on to defeat recovery, must be specifically pleaded. Pleading is essential regardless of whether a defense is regarded as one of estoppel, election, or waiver. The defense of election must be presented in the trial court, and cannot, be urged for the first time on appeal. And the party who sets up [527]*527the defense of election must show that his opponent actually had two valid, available, and inconsistent remedies, and that he undertook to pursue one.”
The rule covering election of remedies is an application of the law of estop-pel and it is used to prevent a double redress for a single wrong. Mosher Mfg. Co. v. Eastland W. F. & G. R. Co., 259 S.W. 253 (Tex.Civ.App.1924, wr. ref.) ; 18 Am.Jur. 131 § 4; Slay v. Burnett Trust, 143 Tex. 621, 187 S.W.2d 377 (1945). The trial court’s language contained in its judgment concerning possession of the premises is at most precatory and wishful in nature. It does not allow double redress for the wrongful acts of evicting the appellee. The appellants’ point number 2 is overruled.
The appellee, in his appeal from the judgment awarding $7500.00 in damages, contends in two cross points that the pleadings, evidence and findings of the court require the entry of a judgment in the amount of $22,700.00 instead of $7500.00. The judgment of the trial court stated that: “ * * the Court finds that the relief prayed for by the plaintiff (appellee) should be granted. * * * ” The trial court then filed formal findings of fact and conclusions of law. Included in these findings of fact are the following:
“2. Plaintiff was in possession of the premises at all times after the lease was executed until Defendants changed the locks on the premises on or about November 11, 1960.
“11. Defendants knew at the time they leased the premises to Plaintiff, that such premises would be operated as a private club.
“12. The Defendants were acquainted with the operation of the club at all times material to this dispute.
“19. The Defendants knew, on or about October 17th, of the subletting by Plaintiff to Westover.
“20. On or about October 17th, 1960, the Defendants accepted Three Hundred Dollars ($300.00 rental from Plaintiff with knowledge of Westover’s sub lease.
“21. The Defendants accepted West-over as a sub-tenant of Plaintiff.
“21(a). The Plaintiff was an operator for a private club and derived income from furnishing and equipping a place for the members to use and assemble.
“22. The leased premises had, for several years prior to the eviction produced at least Four Hundred Dollars ($400.00) per month profit to Plaintiff.
“23. In reasonable probability, Plaintiff would have continued to receive at least Four Hundred Dollars ($400.00) per month profit from the leased premises until the end of the primary term, i. e., December 31,1963.”
The trial court concluded that:
“9. The Defendants unlawfully terminated the lease dated September 30, 1953, when they excluded Plaintiff from his leasehold. ,.
“10. The loss or damages sustained by the Plaintiff as the result of being excluded from his leasehold are the profits he would in reasonable probability have received had the lease not been terminated by Defendants.
“11. That the damages sustained by Plaintiff were the natural and probable result of the Defendants’ act in excluding Plaintiff from his leasehold.”
The appellee contends that he would have continued to receive $400.00 per month profit from the leased premises from November, 1960, (the date of the eviction by the appellants) through December 31, 1963, (the end of the primary term) or a total of $15,200.00, in addition to the damages that the trial court awarded him for the [528]*528loss of the option period in the amount of $7500.00.
When the landlord wrongfully evicts the tenant, the latter shows a cause of action for damages by averring and proving the following facts: (1) The existence of an unexpired contract of renting; (2) occupancy of the premises in question by the tenant; (3) eviction or dispossession by the landlord; (4) damages attributable to such eviction. Reavis v. Taylor, 162 S.W.2d 1030 (Tex.Civ.App.1942, wr. ref. w. o. m.) ; 27 Tex.Jur. 280, § 160. It has been held that the measure of damages for the breach of a contract of lease by the lessor is such damages as naturally and proximately result from the breach. Settegast, et ux. v. Foley Bros. Dry Goods Co., 297 S.W. 676 (Tex.Civ.App.1927, wr. ref.); 35 Tex.Jur. 2d §§ 67, 75 and 77, Landlord & Tenant; Luettich v. Putnum, 287 S.W.2d 727 (Tex.Civ.App.1956, ref. n. r. e.). Article 5236, Vernon’s Ann.Tex.St., states:
“Should the landlord, without default on the part of the tenant or lessee, fail to comply in any respect with his part of the contract, he shall be responsible to said tenant or lessee for whatever damages may be sustained thereby; * * * ”
See also Belcher v. Bullion, 121 S.W.2d 483 (Tex.Civ.App.1938); Richker v. Georgandis, 323 S.W.2d 90 (Tex.Civ.App.1959, n. r. e.). The question before us then is: Why should not the appellee be entitled to damages for the loss sustained by him during the period of time he was evicted from the premises ?
It was undisputed and specifically found by the court that the appellee was wrongfully evicted from the premises in November, 1960. The court found that the ap-pellee would have continued to receive at least $400.00 per month profit from the leased premises until the end of the primary term, i. e., December 31, 1963. The trial court did not make any findings of ■fact’upholding any of the defensive theories advanced by the appellants. The appellants did not object to the findings of fact or conclusions of law filed by the trial court; appellants did not contend that the same were not supported by sufficient evidence; nor did the appellants make any additional request for findings of fact or conclusions of law.
The appellants, in their brief, have admitted that the appellee would be entitled to the damages for the loss of profits during the period from the date of the eviction until the end of the primary term. At one place in their brief where they argue against the trial court’s judgment of $7500.00 for the loss of profits for the destruction of the option, they say: “ * * * It seems to us that the most favorable position appellee could possibly take in this connection would be that his profits for each month during such period would have been $400 and that, accordingly, his loss, during such period, would be $14,400. Such a position would seem to be supported by the trial court’s formal finding No. 23 (Tr. 39).” The appellants then pose this appropriate question to this Court: “In these circumstances, it properly may be wondered why the trial court did not enter judgment on the basis of such finding awarding to appellee an adjudication that he recover of appellants the sum of $14,400.” Continuing, appellants state: “ * * * The record contains evidence showing, beyond dispute, that the ‘established business’ which the eviction shut down and which, but for the eviction, would have produced the aforementioned $14,400 in profits, was not a lawful business but instead was one operating outside the law.” Appellants argue: “ * * * If the business shut down by the eviction had been a legal one then profits lost during the shut-down would perhaps be recoverable. * * * ”
Appellants refer us to the testimony of Westover. He testified, on cross examination, that during the month he was operating the business as- sub-lessee of the appellee, he occasionally sold mixed drinks [529]*529to non-members of the club. Westover further testified that while he was operating the club some of the members or guests occasionally gambled. Appellants argue, that in view of this conclusive evidence the trial court was required to find, and it should be presumed in support of its judgment, that the trial court impliedly found, that the business was an illegal enterprise. Appellants refer us to Bednarz v. State, 142 Tex. 138, 176 S.W.2d 562 (1944). This case recites the proposition of law under Rule 299, T.R.C.P., that all omitted findings necessary to support the judgment will be supplied by presumption in support of the judgment. In the Bednarz case, the trial court filed specific findings of fact, one of which supports the judgment. The court went on to say that if this finding was insufficient and if any additional findings were needed, then under Rule 299, such omitted additional findings in support of the judgment will be supplied. Expressed findings made by a trial judge cannot be extended by implication to cover further independent issuable facts. Duncan v. Willis, 157 Tex. 316, 302 S.W.2d 627 (Sup.Ct.1957); Appellate Procedure in Texas, pages 10-21, § 10.5. The trial court did not make any findings concerning any illegal operation or any other findings whatsoever that would lend support to appellants’ theory of defense. In fact, the trial court found that the reason that the appellants locked Westover out of the premises was because of non-payment of rent. (Appellants later admitted it had been paid). The failure of the appellants to request additional findings of fact effects a waiver of the ground of defense, no element of which has been found. Pinson v. Dreymala, 320 S.W.2d 152 (Tex.Civ.App.1958, wr. ref. n. r. e.) ; McDonald on Texas Civil Practice, § 16.09. Here, appellee’s profit was from his sub-lease to other sub-lessees, not from the operation of a private club. There was no evidence that appellee had any knowledge of any gambling or any open saloon operations. The appellants deny that they knew anything of the operation of the club either. The appellants’ attorney, on cross-examination of Westover, proved that Westover had been convicted of two felony offenses for which he served time in the penitentiary. Appellants, by their own cross-examination have attacked the credibility of Westover. The trial court did not have to believe Westover’s testimony. There was no other evidence in the record pertaining to any illegal operations.
The appellants state that the law avoids all contracts founded upon a violation of the criminal law or forbidden by public policy. Citing Kauffman v. Babcock, 67 Tex. 241, 2 S.W. 878 (1887). However, there was nothing in this lease nor was there any testimony in the record indicating to us that this lease was founded upon a violation of the law. "Where the illegality does not appear on the face of the contract it will not be held void unless facts showing the illegality are before the court. There is never a presumption of illegality, but on the contrary, there will be a presumption of legality. Lewis v. Davis, 145 Tex. 468, 199 S.W.2d 146 (1947) and cases cited; Kahn v. Harris, Upham & Co., 247 S.W.2d 139 (Tex.Civ.App.1952), aff’d., Sup.Ct., 151 Tex. 655, 253 S.W.2d 647. The appellants knew the purpose for which the appellee had leased the premises and there was no evidence that the purpose for which the premises were leased was illegal or forbidden by public policy. There was no forfeiture provision in the lease providing for the right of the lessors to re-enter in the event that the premises were being used for any unlawful purpose. At common law, the lessee does not forfeit his lease by using the demised premises for illegal purposes in the absence of a provision in the lease contract for a forfeiture in such cases. Moore v. Kirgan, 250 S.W.2d 759 (Tex.Civ.App.1952); 36 Tex.Jur.2d 104, § 253; 32 Am.Jur. 730, § 864 ; 52 C.J.S. Landlord and Tenant § 460, p. 185; Wood v. Ingram, 275 S.W. 397 (Tex.Civ.App.1924, wr. dism.).
[530]*530The case has. been fully developed and all facts necessary to the determination of the rights of the parties have been presented and passed on by the trial court. Where the trial court’s findings are not challenged on any point of appeal, they are binding upon the parties and must be accepted by the Court of Civil Appeals. Thompson v. Larry Lightner, Inc., 230 S.W.2d 831 (Tex.Civ.App.1950, n. r. e.); Curry v. E. E. Stone Lumber Co., 218 S.W.2d 293 (Tex.Civ.App.1948, n. r. e.). Findings of fact were filed by the trial court which are supported by the evidence and which would entitle the appellee to additional damages. It appears to us that the trial court improperly entered judgment for a lesser amount to which judgment the ap-pellee objected and complained of the ruling of the trial court by cross points in his brief. Rule 420, T.R.C.P. It therefore follows that where the findings of the court would enable the appellate court to ascertain by computation a correct judgment, the Court has the duty to enter the judgment that should have been rendered below. See Rule 434, Texas Rules of Civil Procedure; Redgrave v. Wilkinson, 208 S.W.2d 150 (Tex.Civ.App.1948, wr. ref., n. r. e.); Traders & General Ins. Co. v. Jones, 201 S.W.2d 105 (Tex.Civ.App.1947, wr. ref. n. r. e.); Yarbrough v. Booher, 141 Tex. 420, 174 S.W.2d 47, 150 A.L.R. 1369 (1943) ; Palmer v. Katz, 210 S.W.2d 451 (Tex.Civ.App.1948, n. r. e).
Here the trial court found that the appellee is entitled to $400.00 per month profit for the remaining period of the primary term, i. e.¡ to December 31, 1963. The evidence shows that although appellee was evicted on November 11, 1960, he received $400.00 from his sub-lessee for the period from October 19th to November 19, 1960. It therefore follows that the ap-pellee would be entitled to a judgment for the period from November 19, 1960, to December 31, 1963, or thirty-seven months and thirteen days. This would be $14,967.74 in addition to the $7500.00 awarded- in the trial court judgment. Such judgment should be $22,467.74,, with interest thereon at six per cent (6%) from October 22, 1963, the date the judgment was entered in the lower court.
Appellee, as a part of one of his cross points, argues that he should be entitled additionally to the sum of $900.00 which was prepaid as rent at the time he executed the lease. There were no findings of fact requested or found by the trial court substantiating the contention set forth by the appellee. In fact, the evidence shows that the appellants gave appellee credit for at least one month that the monthly rent was not paid during the early part of the lease. This portion of appellee’s counter point is overruled.
Accordingly, the judgment of the trial court is affirmed in part, is reversed and rendered in part so that appellee, A. C. Carte, shall have judgment against appellants Charles McKenzie and Robert McKenzie, jointly and severally, for $22,467.74, with interest at six per cent (6%) per annum from October 22, 1963, and all costs of Court.