I respectfully dissent. Originally, I had prepared an opinion for the court, in substantially the language now found in the majority opinion down to and including the citation to the Grayson Enterprises Case (p. 331), with which I still concur. However, I disagree with the present disposition of the case, my objection beginning with the citation from Spence & Howe Construction Co. v. Gulf Oil Corporation, 365 S.W.2d 631, 637 (Tex.Sup., 1963). It seems to me that a more apt and appropriate quotation would have been this language taken from Ohio Oil Company v. Smith, 365 S.W.2d 621, 627 (Tex.Sup., 1963), handed down the same day as Spence & Howe, supra:
“It is the general rule of the law of contracts that where an unambiguous writing has been entered into' between the parties, the courts, in construing that writing will give effect to the intention of the parties as expressed or apparent in the writing. In the usual *333case, the instrument alone will be deemed to express the intention of the parties for it is objective, not subjective, intent that controls.” (Emphasis supplied).
See also: Myers v. Gulf Coast Minerals Management Corp., 361 S.W.2d 193, 196 (Tex.Sup., 1962); City of Pinehurst v. Spooner Addition Water Co., 432 S.W.2d 515, 518 (Tex.Sup., 1968).
Plaintiffs declared upon a contract without claiming any ambiguity therein, and their right to recover a money judgment against defendant, in excess of the agreed rental therein specified, must be based upon the contract itself. The question for determination by the trial court can be stated simply: Did the contract obligate defendant to pay to plaintiffs, annually, a minimum rental of $2,230.00 plus $12.50 for each acre in excess of 140 planted to rice? Or, did the contract obligate defendant to pay to plaintiffs a gross rental of $2,230.00, regardless of the number of acres planted to rice, whether more or less than 140 acres? The construction of the contract presented a question of law. Myers, supra.
We need no statement of facts to construe the words of the contract upon which plaintiffs founded their claim for the money judgment. If our first question is found to express the correct interpretation of the contract, the judgment must stand, because without a statement of facts, there is no means by which defendant can escape the trial court’s judgment as to the amount of additional rental due. On the other hand, if the second question posed is the correct interpretation, defendant needs no statement of facts to secure a reversal.
The question before the trial court, and before this court, may be stated simply: What is the amount of rental specified by the lease? In effect, plaintiffs contend that there was an implied covenant to pay $12.50 per acre for each acre planted to rice with a minimum rice rental of $1,750.00. Defendant, on the other hand, contends that there was a single sum due, regardless of whether he planted 1 acre, 140, or 480 acres in rice — and, further, that this provision is an express covenant to pay a sum certain as rent. In a scholarly opinion in Weil v. Ann Lewis Shops, 281 S.W.2d 651, 655 (San Antonio Civ. App., 1955, error ref.), Judge Murray quoted at length from Cousins Inv. Co. v. Hastings Clothing Co., 45 Cal.App.2d 141, 113 P.2d 878, 882 (1941), wherein the rules with reference to the authority of the courts to insert implied covenants into a contract were stated. I now paraphrase Cousins:
1. The implication must arise from the language used or it must be indispensable to effectuate the intention of the parties;
2. It must appear from the language used that it was so clearly within the contemplation of the parties that they deemed it unnecessary to express it;
3. Implied covenants can only be justified on the grounds of legal necessity;
4. A promise can be implied only where it can be rightfully assumed that it would have been made if attention had been called to it; and
5. There can be no implied covenant where the subject is completely covered by the contract.
No one of these conditions exists in our cause. The parties had set the agreed rental at $2,230.00, no more and no less; there is no legal necessity for implying a promise to pay more money if more than 140 acres were planted to rice; and, most importantly, the subject, i. e., the amount of the rental, was completely covered by the contract.
The parties specifically provided that the cash rental was to be paid annually in advance on January 15th of each year. *334We may take judicial knowledge1 of the fact that on the Gulf Coast of Texas, rice is not planted until much later in the year, at a time when the weather has moderated to such an extent that the seed can germinate. Upon the date the cash rental became due, the rice crop for that year could not have been planted, consequently, the parties had no means of knowing exactly how many acres would he planted to rice. Nevertheless, defendant was bound to pay the agreed rent on 140 acres of the rice land, regardless of how many he actually planted and there was no provision for any portion of that sum to be rebated in the event he did not or could not plant as many as 140 acres to rice. Too, there was a 480-acre tract involved and defendant was not confined to any particular portion of the overall tract in planting his rice. It is also to be noted that he was obligated to pay $1.00 per acre as grazing rent on the entire tract, including the acres upon which he was paying for the privilege of planting rice.
The majority, in “construing” the contract, has overlooked the rule of law that “a lease will be most strongly construed against the lessor.” Sirtex Oil Industries, Inc. v. Erigan, 403 S.W.2d 784, 788 (Tex. Sup., 1966). Instead, and directly in the teeth of Erigan, supra, the majority now finds that the defendant agreed to pay $12.50 as rent, for each acre he planted to rice, although the contract does not so provide. Plaintiffs did not seek “liquidated” damages, as mentioned in the majority; they sought to recover rent under a contract.
Had the plaintiffs pleaded that there had been damage to the leasehold estate by the over-planting of the rice,2 or had they pleaded that the over-planting had or would result in exhaustion of the land, a different case would be presented. There was no pleading of custom among competent rice farmers that the implied obligation of good husbandry would require the land to be taken out of rice cultivation periodically and allowed to recuperate.3 Instead, plaintiffs accepted the trial court’s interpretation of the contract, as contained in the order on the special exceptions previously quoted, and proceeded to trial upon a pleading demanding rent of $12.50 per acre for each acre of the land planted to rice each year.
It is elementary that the plaintiff must recover upon the facts stated in his pleadings and the judgment must be responsive to the issues tendered therein. He cannot properly be awarded a judgment based upon a theory not embraced in his pleadings.4 Rule 301, T.R.C.P.; Rich v. Western Union Telegraph Co., 101 Tex. 466, 108 S.W. 1152, 1154 (1908); Trockmorton v. Davenport, 55 Tex. 236, 237 (1881); Milliken v. Smoot, 64 Tex. 171, 173 (1885) ; Starr v. Ferguson, 140 Tex. 80, 166 S.W.2d *335130, 132 (1942); Oil Field Haulers Ass’n. v. Railroad Commission, 381 S.W.2d 183, 191 (Tex.Sup., 1964); Houston Belt & Terminal Ry. Co. v. J. Weingarten, Inc., 421 S.W.2d 431, 434 (Houston Civ.App., 1967, error ref. n. r. e.); McDonald Texas Civil Practice, § 17.27, pp. 1397, 1398.
While it is clear from the foregoing that the plaintiffs were not entitled to prevail upon the pleadings, it is equally certain that the case was tried on a wrong theory. I would adopt the procedure used by the court in Southhampton Civic Club v. Couch, 159 Tex. 464, 322 S.W.2d 516, 520 (1958): “Under such circumstances it is not only proper but better serves the interests of justice to remand for retrial.” See also, Scott v. Liebman, 404 S.W.2d 288, 294 (Tex.Sup., 1966).
In the interests of justice, I would order a reversal of the judgment of the trial court and a remand of the cause for a trial upon the theory of the case. Therefore, I respectfully dissent from the opinion of the majority affirming an erroneous judgment.
. McCormick & Ray, Texas Law of Evidence (2d Ed.) § 199, p. 230.
. The type of action which would have been proper under this theory is mentioned in Gorman v. Brazelton, 168 S.W. 434 (Ft. Worth Civ.App., 1914, no writ). See also the material considered in Hegar v. Tucker, 274 S.W.2d 752, 757 (Galveston Civ.App., 1955, error ref. n. r. e.).
. See generally, 51C C.J.S. Landlord & Tenant § 345a, p. 875, et seq.
. I note in passing that the majority “must assume” that “plaintiffs offered evidence relating to the customs and usage of contracts covering pasturage and rice, * ⅜ (p. 332). The short answer to this mandatory assumption, the keystone of the opinion, is that no such custom or usage was pleaded by plaintiffs, consequently, plaintiffs could not rely thereon. Kimbrough v. Powell, 13 S.W. 2d 467, 469 (Waco Civ.App., 1929, no writ), construing an agricultural lease. See also, 58 Tex.Jur.2d, Usages and Customs, §§ 19-20, pp. 47-50, and cases therein cited. The further “assumption” in the concurring opinion that “there was evidence establishing the proper measure of damages for breach of the contract” serves to reinforce my position. The pleadings sought additional rent, not damages. There was no pleading of any measure of damage, proper or otherwise; so, of necessity, no recovery under this latter assumption is authorized.