The opinion
COHEN, Justice,
concurring and dissenting.
I agree that the judgment in favor of the appellees should be affirmed, but disagree that it should be reduced in the manner done by the majority.
*151 As stated in Custom Leasing, Inc. v. Texas Bank & Trust Company of Dallas, 516 S.W.2d 138, 143 (Tex.1974) in order to recover for fraud a plaintiff must show that a defendant knowingly or recklessly made a false representation of a material fact intending that the plaintiff rely upon it, and the plaintiff must actually rely upon it and suffer injury therefrom.
The jury found that the appellants maliciously breached an express warranty, by falsely representing a material fact, namely, the age of the truck sold to the appel-lees. The jury further found that the ap-pellees relied on this material, malicious misrepresentation to their detriment. Thus, many, if not all, of the elements of fraud were found by the jury. In this situation, I would hold that Rule 279 of the Texas Rules of Civil Procedure requires us to deem the omitted issues, if any, to support the judgment of the trial court. Rule 279 provides that where a ground of recovery consists of more than one issue and some of the issues necessary to sustain the ground of recovery, and necessarily referable thereto, are answered by the jury, with evidentiary support in the record, then the omitted issues shall be deemed found by the court in a manner to support the judgment, when, as in this case, no objection was made to the omission of such issues from the jury charge.
The issues found by the jury were necessarily referable to a cause of action for fraud, especially in view of the fact that another special issue, regarding exemplary damages, was submitted and answered in favor of the appellees. That issue was necessarily referable only to the cause of action for fraud because exemplary damages can be recovered for fraud, but not for any other cause of action submitted to the jury. It is well established Texas law that exemplary damages cannot be recovered for a malicious, indeed even a gleeful, breach of contract. Amoco Production Co. v. Alexander, 622 S.W.2d 563 (Tex.1981). Therefore, from a review of the charge as a whole and not as a series of isolated parts, I believe that if there was any confusion in the appellant’s mind when the jury charge was submitted which led it to believe that it was not defending a fraud claim, that confusion should have been dispelled by the presence of the special issues regarding exemplary damages and malice. Consequently, I would affirm the judgment as rendered by the trial court.