Tidwell v. Lange, 531 S.W.2d 384 (Tex. Ct. App. 1975)

OPINION

McDONALD, Chief Justice.

This is an appeal by plaintiffs Tidwell and Velicka from take-nothing judgment in a suit for specific performance of an option contract to purchase 9.14 acres of land.

Plaintiffs sued defendant Lange alleging Lange leased plaintiffs 9.14 acres by written contract which contained an option to purchase such land for $26,000; that plaintiffs have substantially and fully complied with the terms of the contract and tendered defendant the $2,600. down payment as provided in the contract, but defendant refused

to convey the property to plaintiffs. Plaintiffs prayed for specific performance of the contract to convey them the property.

Defendant answered that the contract provided plaintiffs give written notice to defendant 30 days prior to the expiration of the lease of plaintiffs’ intention to purchase the property; that such option to purchase was contingent of plaintiffs not being in default; that plaintiffs were in default in payment of rental and taxes and did not give written notice of intention to purchase within the prescribed time.

Trial was to the court without a jury which rendered judgment plaintiffs take nothing.

Plaintiffs appeal on 2 points contending “The trial court erred in holding by implication that [defendant] had not waived the 30-day written notice requirement of the lease.”

The contract provided defendant lease to plaintiffs 9.14 acres for a period beginning August 7, 1969 and ending August 7, 1974 for a monthly rental of $173. per month. In addition it required plaintiffs to pay for all utilities and taxes on the land before same became delinquent.

Paragraph X “provided that lessee while not in default hereunder and during the final month of this lease term, is hereby given the privilege of purchasing said premises for the sum of $26,000” [$2,600. cash down payment and a note for the balance payable in monthly installments at 8% interest over a 15 year period]. “In event that lessee shall desire to exercise this option of purchase, he shall give written notice to lessor fully 30 days prior to the expiration of this lease agreement.”

The trial court at request of plaintiffs filed Findings of Fact and Conclusions of Law, summarized as follows:

faulting in the payment of the monthly lease rental payments.

Plaintiffs admitted the rentals were not paid up on July 7, 1974; that two months rental was due on such date; that plaintiffs paid up the delinquent rentals on August 5, 1974, which was for the June and July 1974 rents; that taxes were past due on the property on July 7, 1974, which taxes were paid up by plaintiffs on August 7, 1974; that plaintiffs first gave written notice of desire to purchase the land on August 7, 1974.

Plaintiffs cite Jones v. Gibbs, 133 Tex. 627, 130 S.W.2d 265, assert that because defendant accepted the rent late, because plaintiffs orally told defendant in June 1974 they intended to exercise the option to purchase, that because plaintiffs thought the lease did not terminate until September 7, 1974, and because plaintiffs have placed valuable improvements on the property, that equity should not allow defendant to cut off plaintiffs’ valuable option to purchase.

Plaintiffs filed no objections to the findings of the trial court and did not request any additional findings. The evidence is disputed that plaintiffs orally told defendant they intended to exercise the option.

If plaintiffs desired additional findings it was incumbent upon them to request same as provided for by Rule 298 TRCP. Not having done so the matter was waived. Nelson v. Flache, CCA (Amarillo) NRE, 487 S.W.2d 843; Lutz v. Lutz, CCA (1st Houston) NWH, 508 S.W.2d 955; Vanity Fair Properties v. Billingsley, CCA (San Antonio) NRE, 469 S.W.2d 453; Caldwell v. Caldwell, CCA (Waco) NWH, 423 S.W.2d 140.

And omitted unrequested findings will be presumed in support of the judgment. Rule 299 TRCP.

In the absence of equities an op-tionee is held to a strict compliance with the terms of the option agreement. The lease here granted the option to plaintiffs. They did not exercise it within the time prescribed, and could not have as rentals and taxes were unpaid on the property until August 5, and 7, 1974. There are no findings of fact which make it inequitable as to plaintiffs to require a strict compliance with the notice provision. Jones v. Gibbs, 133 Tex. 627, 130 S.W.2d 265; Zeidman v. Davis, 161 Tex. 496, 342 S.W.2d 555.

Plaintiffs’ points and contentions are overruled.

Affirmed.