holding that although seller of gasoline demanded payment of the full amount due under the contract and recovered as damages only the difference between the market value and the contract price of the gasoline, on a promissory estoppel theory, seller's presentment was sufficient to support an award of attorney fees
How later courts described this case
- holding that although seller of gasoline demanded payment of the full amount due under the contract and recovered as damages only the difference between the market value and the contract price of the gasoline, on a promissory estoppel theory, seller's presentment was sufficient to support an award of attorney fees
- holding evidence that claimant sent appellant letter summarizing terms of parties' gas purchase contract and stating that payment was due upon presentation of invoice and later presented appellant's representatives with gasoline contracts and invoices for 200,000 barrels of gasoline was sufficient presentment
- noting that jury award was “substantially less than the amount that the evidence shows [plaintiff] had already paid” but within range of damages supported by evidence, and “in reviewing the adequacy of damages, we may not substitute our judgment for that of the jury.”
- distinguishing a jury- charge objection based on “no evidence of presentment” from an objection to the omission of an issue on presentment; holding that presentment was deemed found when there was no objection to the omission of presentment from the jury charge
Written by the judges who cited it.
The opinion
ON MOTIONS FOR REHEARING
Box contends as he did in his initial submission, that Petrade was not entitled to a promissory estoppel recovery for the amount of its reliance damages found by the jury. Box argues that there was no evidence of any actual loss by reason of Petrade’s reliance, and that any alleged loss related only to the fuel oil contract, which was not at issue in this appeal.
We overrule Box’s contention. The jury found, in effect, that Box and Adams did not honor their agreement to buy gasoline, and that Petrade reasonably and detrimentally relied on the appellants’ promises. When appellants refused to honor their promises, Petrade was forced to cancel its gasoline order from Gulf States. When Petrade cancelled the gasoline contract, Gulf States refused to deliver the prepaid fuel oil that Petrade had bought or to refund Petrade’s prepayment. Thus, Pe-trade’s loss was the direct result of the failure of Box and Adams to perform the gasoline contract. It is irrelevant that the amount paid by Petrade related to the fuel oil rather than the gasoline contract.
Box also complains of our determination that a deemed finding on the issue of presentment should be made in support of the court’s award of attorney’s fees. He argues that his “no evidence” objection to the submission of the attorney’s fee issue constituted an attack on the “heart” on any finding of presentment, which finding was necessary to support an award of attorney’s fees. See George S. May Co. v. Stephens Lumber Co., 301 S.W.2d 294, 297-98 (Tex.Civ.App.—Fort Worth 1957, no writ).
We overrule this contention. When one or more of a cluster of issues is submitted to the jury, and one issue relating to the cluster is omitted, the issue will be deemed found in such manner as to support the judgment. Transport Insurance Co. v. Mabra, 487 S.W.2d 704, 707-08 (Tex.1972); see also Southwestern Bell Tel. Co. v. Thomas, 535 S.W.2d 686, 695 (Tex.Civ.App.—Corpus Christi 1976), rev’d, on other grounds, 554 S.W.2d 672 (Tex.1977). The deemed finding rule doés not apply if there was a specific objection to the charge because of the failure to submit one of the cluster of issues. Transport Insurance Co. v. Mabra, 487 S.W.2d at 707 . Here, no specific objection was made that the issue failed to include the element of presentment, and the “no evidence” challenge did not bring the asserted error to the attention of the trial court. Id. at 707-08 .
Box further challenges the court’s award of attorney’s fees on the ground that the award is excessive. We note that Box’s challenge on that particular ground is raised for the first time on rehearing. We consider that contention to have been waived.
Except as discussed herein, the remaining contentions asserted by Box, Adams, and the appellees in their respective motions for rehearing have been adequately discussed in our original opinion. The motions for rehearing are overruled.