Vigil v. Elizondo , 591 S.W.2d 307 ( 1979 )

OPINION

STEPHEN F. PRESLAR, Chief Justice.

For the reason that the judgment rendered is not supported by the pleadings, this summary judgment case must be reversed.

Appellees, as buyers, brought this suit for specific performance for conveyance of two lots described as Lots 17 and 18 in Pecan Acres Subdivision, Laredo, Webb County, Texas. They attached their contract of sale to their petition and prayed for its specific performance. Among other things, Defendants/Appellants imposed the defense that the contract had been modified by oral agreement to be Lots 18 and 19. On Appel-lees’ motion for summary judgment, the parties presented conflicting evidence of both written and oral agreements concerning the sale, including the identity of the land. The Court granted partial summary judgment in favor of the Plaintiffs, ordering Defendants to execute a warranty deed to Plaintiffs conveying Lots 18 and 19; and an order of severance of other matters made the partial summary judgment final.

We sustain Appellants’ first point of error that the trial Court erred in rendering summary judgment for Plaintiffs for Lot 18 and 19 because Plaintiffs sued for title to Lots 17 and 18 and the judgment is therefore not supported by the pleadings. It is well settled that a court may not grant relief not supported by pleadings or prayer. Starr v. Ferguson, 140 Tex. 80, 166 S.W.2d 130 (1942); Board of Firemen’s Relief and Retirement Fund Trustees of Harris County v. Stevens, 372 S.W.2d 572 (Tex.Civ.App.—Houston 1963, no writ); Tharp v. Blackwell, 570 S.W.2d 154 (Tex.Civ.App.—Texarkana 1978, no writ); Huddleston v. Fergeson, 564 S.W.2d 448 (Tex.Civ.App.—Amarillo 1978, no writ); Rule 301, Tex.R.Civ.P.

A case not unlike the one before us is the early case of Community of Priests of Saint Basil v. Byrne, 236 S.W. 1016 (Tex.Civ.App.—Austin 1921), reversed on other grounds 255 S.W. 601. There, it was held that a plaintiff suing on one contract cannot recover upon a different contract set up by the defendant in the pleadings as the true contract unless plaintiff’s pleadings fairly embrace the contract set up by the defendant.

The judgment of the trial Court is reversed and the cause is remanded for trial on the merits.