dissenting.
I respectfully dissent.
The majority opinion states that the judgment of the trial court “awards ultimately only one form of relief — rescission of the parties’ contract.” However, the pleadings of the plaintiffs clearly set out that this was a suit for securities and real estate fraud, violation of the Deceptive Trade Practices Act, breach of contract, and common law fraud arising out of an oil and gas transaction in 1976. The findings of fact and conclusions of law also clearly set out a violation of §§ 17.46(a) and 17.46(b)(12) of the DTPA. Furthermore damages awarded by the trial court clearly indicate that they are “to restore to plaintiffs any money acquired by defendants in violation of the Deceptive Trade Practices — Consumer Protection Act.” See Conclusion of Law No. 1 and 3, as set out in the majority opinion. The fact that the same relief awarded under a DTPA suit could also be relief granted by rescission should not preclude the resort to Tex.R.Civ.P.Ann. 299, which reads:
Where findings of fact are filed by the trial court they shall form the basis of the judgment upon all grounds of recovery and defense embraced therein. The judgment may not be supported upon appeal by a presumption of finding upon any ground of recovery or defense, no element of which has been found by the trial court; but where one or more elements thereof have been found by the *136trial court, omitted unrequested elements, where supported by evidence, will be supplied by presumption in support of the judgment. Refusal of the court to make a finding requested shall be reviewable on appeal, (emphasis mine).
In the case cited by the majority, E.F. Hutton & Co., Inc. v. Fox, 518 S.W.2d 849 (Tex.Civ.App.1974, writ ref'd n.r.e.), it was held that, while omitted elements of recovery or defense will be supplied by presumption in support of the judgment, this rule does not authorize an appellate court to presume findings on theory of recovery which was not raised by pleadings. In this case, however, we have no such lack of pleading. Appellees pleaded causes of action for securities and real estate fraud, violation of the DTPA, breach of contract and common law fraud. The case at bar is, therefore, distinguisable from Hutton. I think we must assume that the trial court here determined favorably to the judgment any omitted findings of fact and conclusions of law necessary to support the relief ordered by the judgment.
I disagree with the majority that estop-pel forms the basis of the trial court’s judgment. I also disagree that conclusion of law number two is grounded solely upon the court’s determination (set out explicitly in finding of fact number six) that appellants had induced appellees not to file their suit in time to, avoid the bar of limitations being raised against it. The trial court found specifically that the defendants failed to disclose to plaintiffs that others held title to the two leases and that the plaintiffs would not have entered this transaction had this information been disclosed. Finding of Fact No. 4. Further, the trial court found that plaintiffs were never told by defendants, did not know, and could not reasonably have known about the existence of the Lear Exploration Agreement and the verbal farmout agreement with one Lambert Hollub. The appel-lees argue correctly that the appellants should be estopped from asserting limitations because of these failures to disclose, even up to the time of filing suit. At trial, appellant Leonard admitted he held no ownership interest in the Corsicana Bank lease when he entered into the agreement with the appellees. Leonard attempted to maintain that he held some character of control over the lease by virtue of an exploration agreement Leonard had with Lear Petroleum in 1975. Appellants may have become suspicious by 1978 or 1979 when assured by appellant that he had the right to make any assignments under the unrecorded agreement, but actually had no way of knowing or ascertaining the veracity of the facts originally represented to them by Leonard.
Finally, the trial court’s Conclusion No. 2, in which it held that defendants are estopped from asserting limitations regarding the failures to disclose and the later representations indicates that the trial court based its conclusion on both failure to disclose originally, as well as subsequent statements made by appellant to soothe and assure appellees. Appellees argued that Leonard’s credibility at trial was brought into serious question, and the the trial judge had ample reason to disbelieve appellant entirely.
A case closely in point is Sherman Foundry v. Mechanics, Inc., 517 S.W.2d 319 (Tex.Civ.App.1974, writ dism’d), in which the court held that where implied findings are necessarily referrable to an express finding and are supported by the evidence, they are properly considered by the Court of Appeals in support of the judgment.
Finally, the trial judge as the fact finder is the exclusive judge of the credibility of the witnesses and the weight to be given their testimony. I should not want to substitute my judgment here when the express and implied fact findings and conclusions clearly support the judgment entered by the trial court.
I would affirm the judgment.