MATERIAL BREACH AND REPUDIATION
2
total breach of contract, or continuing performance
and suing for a partial breach. Chilton Ins. Co. v. Pate
& Pate Enterprises, Inc., 930 S.W.2d 877, 887-888
(Tex.App.–San Antonio 1996, writ denied);
Smallwood v. Singer, 823 S.W.2d 319, 321 (Tex
App.–Texarkana 1991, no writ). However, if the
defendant's breach can be characterized as
nonmaterial or if it is a breach of a "subsidiary"
obligation (a condition not regarded as vital to the
contract), the plaintiff can sue for a partial breach and
bring later suits for continued or successive breaches.
See American Bank v. Thompson, 660 SW.2d 831,
834 (Tex.App.–Waco 1983, writ ref'd
n.r.e.)(subsidiary breach); Kaiser v. Northwest
Shopping Ctr., Inc., 587 S.W.2d 454, 457 (Tex.App.–
Dallas 1979, writ ref'd n.r.e.)(nonmaterial breach).
If an owner allows a breaching contractor to
perform without objection, or if the owner continues
to insist upon performance under the contract, it will
waive the owner's right to terminate the contract.
Seismic & Digital Concepts, Inc. v. Digital Resources
Corp., 590 S.W.2d 718, 721 (Tex.Civ.App.–Houston
[1st Dist.] 1979, no writ).
In response to a material breach, a plaintiff can
cease performance and sue for a total breach of the
contract. Long Trusts v. Griffin, 222 S.W.3d 412, 415
(Tex.2006). A claim for damages for total breach is
based on all of the injured party's remaining rights to
performance. Restatement (2d) of Contracts §236(1)
(1981). Alternatively in response to a material breach,
a plaintiff can continue with its performance and sue
for partial breach. Smallwood, 823 S.W 2d at 321. A
claim for damages for partial breach is based on only
part of the injured party's remaining rights to
performance. Restatement (2d) of Contracts § 236(2).
If the plaintiff treats the contract as continuing after
the defendant's breach, the plaintiff will not be
excused for terminating its own performance later.
Long Trusts, 222 S.W.3d at 415.
III. REPUDIATION
A plaintiff's performance is excused if the
defendant repudiates a dependent promise. Glass v.
Anderson, 596 S.W.2d 507, 511 (Tex. 1980). A
dependent promise is a promise that is conditioned on
the performance of a reciprocal promise by the other
party. 46933, Inc. v. Z&B Enters., 899 S.W.2d 800,
807-08 (Tex.App.–Amarillo 1995, writ denied).
Dependent promises are usually intended to be mutual
and concurrent acts; the parties do not intend that
either party should perform some act as a condition
precedent to the act of the other party. See Perry v.
Little, 419 S.W.2d 198, 200-01 (Tex. 1967). A
dependent promise is sometimes referred to as a
"concurrent condition." Id. If the plaintiff and
defendant are required to perform their promises
simultaneously, the plaintiff must be ready and willing
to perform and must offer to perform its dependent
promise before it can sue on the contract. Id. Unless
the parties' agreement indicates a different intent, a
court will presume the promises of the parties are
mutual and dependent. Nutt v. Members Mut. Ins.
Co., 474 S.W.2d 575, 577-78 (Tex.App.–Dallas 1971,
writ ref'd n.r.e.).
A party repudiates a contract if, without just
excuse, it absolutely and unconditionally refused to
perform the contract. Jenkins v. Jenkins, 991 S.W.2d
440, 447 (Tex.App.–For Worth 1999, pet. denied).
The party's words or conduct must show a fixed
intention to abandon, renounce, and refuse to perform
the contract. Id. If the party's refusal to perform its
contractual obligations is based on a genuine mistake
or misunderstanding about matters of fact or law,
there is no repudiation. Id.
Repudiation can occur before performance is due
(anticipatory repudiation) or after partial performance.
A party breaches a contract by absolutely repudiating
an obligation under the contract, without just excuse,
before the defendant's performance is due. Murray v.
Crest Constr., Inc., 900 S.W.2d 342, 344 (Tex. 1995).
This is known as "anticipatory breach." Id. A party
breaches a contract by repudiating an obligation under
the contract, without just excuse, after defendant has
partially performed its contractual obligations. Van
Polen v. Wisch, 23 S.W.3d 510, 516 (Tex.App.–
Houston [1st Dist.] 2000, pet. denied).
When a defendant's breach is by repudiation, a
plaintiff has two options: accept repudiation, or wait
for performance, both providing recourse to sue
damages. Murray v. Crest Constr., Inc., 900 S.W.2d
342, 344 (Tex. 1995); America's Favorite Chicken Co.
v. Samaras, 929 S.W.2d 617, 626 (Tex.App.–San
Antonio 1996, writ denied).
The plaintiff can accept the defendant's repudiation
(before retracted) by materially changing its position
in reliance on the repudiation or indicating to the
defendant that it considers the repudiation to be final.
Glass v. Anderson, 596 S.W.2d 507, 510 (Tex. 1980).
Further, an anticipatory breach does not change the
usual rule that damages for breach of contract
compensate the innocent party for loss or damage
actually sustained. See Stewart v. Basey, 245 S.W.2d
484, 486 (Tex. 1952). Thus, the plaintiff may recover
the value of the expected performance of the contract,
which may be less than the remaining face value of
the contract because of the uncertainty of future
performance. Kiewit Tex. Mining Co. v. Inglish, 865
S.W.2d 240, 245 (Tex.App.–Waco 1993, writ denied).