I dissent:
From a judgment in favor of plaintiffs after trial before the court without a jury in an action to recover sums alleged to be due for breach of a contract to pay certain percentages of royalties received by defendant, the latter appeals.
Viewing the evidence in the light most favorable to plaintiffs (respondents), so far as material here the essential facts are:
Defendant obtained two separate oil leases, one on property owned by a Mr. Colter and others, hereinafter referred to as the Colter lease, and the other upon property owned by Mr. Seeger and others, hereinafter referred to as the Seeger lease. The two properties are adjacent. Defendant assigned the Colter lease to Odell Petroleum Corporation, which in turn assigned it to the American Petroleum Company, reserving unto himself a 30% royalty interest. He assigned the Seeger lease to the Two-and-One Oil Company, reserving unto himself a 20% royalty. The Seeger property was too small to permit the erection of an oil derrick and the necessary appurtenances, and defendant obtained permission from the American Petroleum Company for the assignees of the *128Seeger lease to use a portion of the surface of the property covered by the Colter lease. Defendant agreed to pay Mr. Wallace Taylor, one of the plaintiffs, one-half of one per cent of the production from the Seeger lease for such permission. The American Petroleum Company and the Two - and - One Oil Company erected on the Colter property certain oil well operating facilities, which were used by both companies. Defendant paid Mr. Taylor one-half of one per cent of the production from the Seeger lease from November, 1933, until April, 1935. He then refused to make further payments. Thereafter plaintiffs sued to recover such percentage. Among other defenses defendant by his answer pleaded the Statute of Frauds, and evidence was introduced tending to prove that the alleged agreement for the payment of royalty was an oral one and for the transfer of an interest in real property. The trial court failed to make a finding upon the issue raised by this defense.
This is the sole, question necessary for us to determine:
Where there is substantial evidence, if believed by the trial judge, to sustain defendant’s plea that the statute of frauds bars a recovery by plaintiffs, is it prejudicial error for the trial court to fail to make a finding on this issue?
This question must be answered in the affirmative. The law is settled in California that it is reversible error for the trial court to fail to make a finding upon a material issue properly raised by the pleadings if, as in the instant case, there is any evidence which would support a finding in favor of such defense (Due v. Swartz, 22 Cal. App. (2d) 217, 218 [70 Pac. (2d) 716]; Lyden v. Spohn-Patrick Co., 155 Cal. 177, 182 [100 Pac. 236] ; Knoch v. Haizlip, 163 Cal. 146, 153 [124 Pac. 998].)
There is no merit in plaintiffs’ assertion that defendant is estopped from invoking the defense of the statute of frauds, for the reason that estoppel as to any defense which would otherwise be available to the defendant (appellant) under the facts stated in a complaint may not be relied upon by the plaintiff (respondent) unless the estoppel is pleaded (Cohen v. Metropolitan Life Ins. Co., 32 Cal. App. (2d) 337, 347 [89 Pac. (2d) 732].) Therefore, since in the instant case estoppel was not pleaded in plaintiffs’ complaint as amended, the plaintiffs may not rely thereon to defeat defendant’s defense of the statute of frauds.
For the foregoing reasons in my opinion the judgment should be reversed.