dissenting.
I respectfully dissent. I would hold that the failure of appellees to plead ratification as a defense to reformation should have denied them a jury issue on this point. The majority holds that the issue was tried by consent since evidence was offered to show ratification as a defense to rescission, which was pled, and that the same evidence should be considered on the question of reformation, to which was not plead as a defense.
The case of Musso v. Cronley, 422 S.W.2d 840 (Tex.Civ.App. — Waco 1967, no writ) involved a boundary dispute. Appellants pleaded that they acquired title to the contested land under a 25-year statute of limitations, but failed to plead that they acquired title by adverse possession under a ten year statute. Appellant argued that the issue was tried by implied consent, but the Court stated:
The purpose of Rule 94 is to give the opposing party notice of the defensive issues to be tried. Petroleum Anchor Equipment, Inc. v. Tyra (Tex.Sup., 1967) 419 S.W.2d 829, 835; Reid v. Associated Employers Lloyds, Tex.Civ.App., 164 S.W.2d 584, writ ref. Appellee was given notice that evidence would be adduced *33on the 25-year statute, not the other. The evidence offered was admissible under the pleaded statute, and was relevant to the issue pleaded. It was not incumbent on appellee, consequently, to object to the evidence on the ground it was not within the pleading in order to avoid waiver. Such an objection would have been untenable since there was pleading to support admission of the evidence.
Musso, 422 S.W.2d at 841. Similar holdings are found in the cases of Watts v. Watts, 563 S.W.2d 314 (Tex.Civ.App. — Dallas 1978, writ ref’d n.r.e.), Yarbrough v. Cooper, 559 S.W.2d 917 (Tex.Civ.App.— Houston [14th Dist.] 1977, writ ref'd n.r.e.).
Appellants were not required to speculate whether appellees intended the evidence on ratification to apply to the cause of action for reformation as well as that for rescission, especially when appellees could have resolved the matter through proper pleading. Appellants were entitled to infer from appellees’ pleading that the reformation action was being defended solely on the elements necessary for appellees to prove ratification in order to establish their right to recovery.
Ratification is a plea in avoidance, and thus is an affirmative defense which must be pleaded unless the issue was tried by consent. Petroleum Anchor Equipment, Inc. v. Tyra, 419 S.W.2d 829 (Tex.1967); Royal Typewriter Co. v. Vestal, 572 S.W.2d 377 (Tex.Civ.App. — Houston [14th Dist.] 1978, no writ). I would hold that appellants need not have objected to the trial evidence on ratification, because that evidence was properly directed toward ap-pellees’ pleaded defense to rescission. The fact that the same evidence could also have constituted a defense to reformation does not mean that appellants waived their objection. Appellants need only object to evidence properly admitted on a properly pleaded defense in order to avoid trying an unpleaded issue by “consent.”
I would hold that none of the evidence on ratification was properly attributable to appellant’s cause of action for reformation because appellee failed to plead ratification as a defense to reformation. The trial court’s decision to permit appellees to file a post verdict trial amendment on grounds that the issue was tried by consent therefore constituted an abuse of discretion. I would reverse the judgment of the trial court and order that the mineral deed be reformed to reflect that appellees own only 8/28 of the mineral interest in the land.