On Motions for Rehearing.
Both parties have moved for rehearing, appellee contending that we erred in failing to affirm the trial court’s judgment, and appellant contending that we erred in failing to render judgment in his favor for the face amount of the note.
Appellee’s motion is thought to be without merit. We neither held nor intended to hold in the original opinion that appellee failed to plead the matters that were submitted to the jury in special issues six through eight. We only held that those matters were not pleaded as fraud and do not add up to fraud. They were pleaded as a part of appellee’s plea of no consideration, and there was no suggestion in ap-pellee’s answer that appellant’s alleged promise was not made in the utmost good faith. An entirely different alleged fact situation was dealt with in appellee’s cross-action, and that phase of his defense was waived. We remain of the opinion that we cannot presume a finding in favor of the judgment to round out a defense not asserted. An entirely different situation would exist if fraud had been pleaded or if the necessary elements of fraud had been submitted to the jury without objection, even though not pleaded.
Being still of the opinion that the note does not represent liquidated damages, we cannot agree with appellant’s contention that we erred in failing to render judgment in his favor for the face amount of the note. However, we have concluded that we should have rendered judgment in his favor for four monthly installments of rental.
On the basis of the transcript and briefs, we more or less assumed originally that appellant had not fully developed his case under an acceptable theory of recovery. But recourse to the statement of facts has now led to the conclusion that, within the *896framework of his pleadings, he did fully develop his case.
We are of the opinion that under his pleadings appellant was only entitled to recover rental due under the lease contract. We are also of the opinion that the lease contract terminated not later than May 29, 1953, whereupon rental ceased to become due under it, and only four monthly installments of rental remained unpaid at that time.
To demonstrate that only rental was recoverable, we think it unnecessary to do more than set out the essence of appellant’s petition, which is: that the note was given “pursuant to the terms” of the lease contract and was “payable in the event the said Dan W. Thomas failed to pay the rent reserved in accordance with the terms set forth in such lease”; that “the defendants, and each of them, failed to pay such rent as required in such lease”; that “they have surrendered possession of such premises and wholly made default prior to surrendering possession of the same, and that demand was made upon them to perform the terms of said lease and pay the rent reserved thereunder but they wholly failed and refused to do so and wholly made default” ; that “such note is now due and payable,” etc. Appellant did not plead that he had sustained or would sustain injury or damage otherwise than through the lessee’s failure to pay rental.
Appellant’s petition, in conjunction with evidence showing that re-entry occurred on May 29, 1953, is perhaps sufficient also to support our conclusion that the lease contract terminated not later than the mentioned date, as we are of the opinion that the representation that the lessee “surrendered possession of the leased premises” should be construed as including acceptance of surrender and as meaning that the lease was terminated by mutual consent of the parties. But if we are in error in this view, we are nevertheless of the opinion that the undisputed evidence shows a surrender of the leasehold estate and termination of the contract by operation of law on May 29, 1953. On that date, without having taken any precautions to prevent a surrender by operation of law, and apparently upon the theory that the contract in question was ended, appellant put a new tenant or lessee in possession of the premises, and he thereafter continued to rent or use the premises for his own benefit. He did not purport to act for or on behalf of the lessee in the subject lease, and he had even been instrumental in ousting from the premises the person whom the lessee had left in charge of his business. See, Dearborn Stove Co. v. Caples, 149 Tex. 563, 236 S.W.2d 486, 489, which is also authority for the proposition that no more rent became due under the lease after surrender of the leasehold estate by operation of law.
Seeking to avail himself of the rule that rental that is paid in advance is not ordinarily recoverable by a lessee upon termination of a lease before expiration of the term for which the payment was made (Dearborn Stove Co. v. Caples, supra), appellant argues that the subject lease and note contemplated that the rental for the last year of the lease term was to be payable in advance at any time that the lessee should be in arrears with the rental for as much as two months. We cannot so construe the instruments. Appellant also argues that the case was tried in the trial court upon the theory that he was entitled to recover either the face amount of the note or nothing, and that it should be disposed of by this court upon the same theory. We recognize that the case must be reviewed in the light of the theories on which it was tried below, but do not believe that this rule of appellate procedure is as far reaching as appellant would have it be. The trial theories are to be gathered from the pleadings and evidence and from what actually took place in the trial court, not from what the parties may have assumed was in issue. Appellee did nothing that would have prevented him from contesting the amount due under the lease and note if the trial had reached that point. *897Appellant further argues that, assuming initial validity for the lease and note, ap-pellee failed to plead either a defense or grounds for restricting recovery to less than the face amount of the note. \ A sufficient answer to the contention /lies, we think, in the fact that appellant^ right of recovery was restricted by his own pleadings and evidence. In final analysis, and taking into consideration the lease and note on which he declared, appellant only pleaded and proved facts entitling him to recover four installments of rent.
Assuming that during the life of the lease appellant would have been entitled to recover the face amount of the note at any time that rent for two months was due and unpaid, we do not think it necessarily follows that judgment must now be rendered in his favor for that amount. In the assumed situation, any excess over and above past due rental that might have been recovered would have been held, we believe, in trust for the one from whom it was collected and only as security for the payment of rental thereafter becoming due. The full extent of appellee’s liability under the true conditions being known, we think it proper to render judgment against him for only the amount due.
It is undisputed that the installment of rent that fell due on January 13, 1953, as well as all previous installments, was paid. There remained then, only the installments that fell due on the 13th of February, March, April and May, 1953. The note provided that it was not to bear interest, but this does not affect appellant’s right to recover interest at the statutory rate of six per cent on the rental installments from the respective dates on which they became due. Roberts v. Smith, 64 Tex. 94; Ball v. Belden, 59 Tex.Civ.App. 29, 126 S.W. 20.
Appellee’s motion for rehearing is overruled. Appellant’s motion is granted but without the full relief sought. So much of our original opinion and judgment as ordered the case remanded for a new trial is withdrawn, and judgment is here rendered that appellant recover of appellee the sum of $1,600 together with interest at the rate of six per cent per annum on the rental installments of $400 each comprising that sum from the respective dates on which the installments became due, and costs of suit.