¶1(concurring).
¶2I concur in the disposition made of this case, but n'ot with everything said in Justice SUTTON’S opinion.
¶3Plaintiff’s substantial right was an option for 30 days to buy the property for what the Gutierrez heirs were willing to sell to a third party. This option was sufficiently definite to amount to a legal right. Pickrell v. Buckler, Tex.Civ.App., 293 S.W. 667; Id.,116 Tex. 567, 296 S.W. 1062. It is my thought the right to purchase was substantially accorded him. The notice served upon him might not have been in strict accord with the provisions of the lease. Pie never questioned the sufficiency of the notice served upon him. In response to same he asked and was accorded a conference with the prospective purchaser. At this conference he assured defendant Gallagher he was not interested in the property at $5.00 per acre. There is evidence that this was his attitude from being informed as to the name of the prospective purchaser and the price until after the deed to the purchaser. It is thought Mecom has no just cause to complain of the insufficiency of the notice under the lease unless it deprived him of the right to have an opportunity to purchase the property at $5 per acre. This right was accorded him and consistently he refused to exercise same, or at least there is evidence to this effect. Gallagher, in substance, informed Mecom at this conference that he recognized his prior right to purchase, and inferentially he would not pursue the matter further if Mecom decided to purchase at the price of $5 per acre. Mecom assured him he was not interested in the land at $5 per acre, gave this assurance when he knew Gallagher wanted to buy at $5 per acre. His letter to the Gutierrez heirs dated January 22, 1944, disclaims any intention to buy at $5 an acre, said he would only give $4.50 and a release of an obligation to do some fencing on the leased premises.
¶4In the charge some part of the factual elements of an estoppel en pais was submitted; it was found in substance that on December 21, 1943, Mecom advised Gallagher that he was not interested in the land as priced at $5 per acre, the amount Gallagher offered for the land; that Mecom by his conduct lead Gallagher to believe that he acquiesced in the sale. These findings are not the entire content of the pleaded defense for estoppel, but are important and essential elements of the defense. The evidence raised issues as to the existence of the other constituting elements. In view of the judgment it must be that a finding of the unsubmitted elements was made by the court in favor of Gallagher.
¶5As has been said, if the Gutierrez heirs desired to sell, Mecom after notice had a prior right for thirty days to purchase at the price at which they were willing to sell. Knowing the Gutierrez heirs desired to sell, the price at which they desired to sell, the name of the purchaser, Mecom failed to indicate his intention to buy at the price set. In fact he lead the prospective purchaser to believe that he did not desire to purchase at the price set. He reasonably induced the belief on the part of Gallagher that he was abandoning his existent right to purchase at $5 an acre. In reasonable reliance on the words and acts of Mecom,, Gallagher did purchase. He was accorded the right to purchase for thirty days.
¶6From the verdict and from the inferences arising from the judgment all ele*309ments of an estoppel en pais were found in favor of Gallagher, Dickerson v. Colgrove, 100 U.S. 578, 25 L.Ed. 618; Hart v. Wilson, Tex.Com.App., 288 S.W. 133; Longbotham v. Ley, Tex.Civ.App., 47 S.W.2d 1109, W.R.; Hammonds v. Flewellen, Tex.Civ.App., 48 S.W.2d 813; Richards v. Frick-Reid Supply Corporation, Tex.Civ.App., 160 S.W.2d 282.
¶7It is thought unnecessary to determine whether the notice served upon Mecom on December 21, 1943, was in strict accord with the terms of the lease. He never questioned the sufficiency of same, after same was served upon him he made an offer to purchase the property at $4.50 per acre. The evidence justifies an attributed finding that at no time prior to the purchase by Gallagher did he offer to meet the terms of the proposed sale to Gallagher.