Ennis Business Forms, Inc. v. Gehrig, 534 S.W.2d at 189; see also McKenzie v. Farr, 541 S.W.2d 879, 881 (Tex.Civ.App. — Beaumont 1976, writ ref'd n.r.e.) (unconditional declaration of intent not to perform in future). When a vendee repudiates a contract, the vendor is entitled to an immediate rescission of the contract. Griffith v. Porter, 817 S.W.2d 131, 135 (Tex.App. — Tyler 1991, no writ). Notice of intent not to perform under a contract, however, does not of itself constitute an automatic rescission. Id.
When a party repudiates a contract, the non-repudiating party is entitled to an immediate rescission of the contract. See Griffith v. Porter, 817 S.W.2d 131, 135 (Tex. App.—Tyler 1991, no writ). Notice of intent not to perform under a contract, however, does not of itself constitute an automatic rescission. Id.
"[I]f the repudiation is rejected by the nonrepudiating party, the contract is kept alive for the benefit of both parties and both remain subject to the obligations under the contract." Id. (citing Griffith v. Porter, 817 S.W.2d 131, 135 (Tex. App. 1991)). Put differently, a refusal to perform under a contract "must be treated and acted upon as such by the party to whom the promise was made" in order to constitute a breach.
It is a well established rule that the repudiation of a contract by one party rescinds the contract when such repudiation is accepted by the other party. [However], [i]f the repudiation is not accepted by the other party, the contract is kept alive for the benefit of both parties; the non-repudiating party, like the repudiating party, remains subject to all obligations under the contract.Santa Fe Petroleum, L.L.C. v. Star Canyon Corp., 156 S.W.3d 630, 638 (Tex.App.-Tyler 2004) (emphasis added); see also Texas Gas Utilities Co. v. Barrett, 460 S.W.2d 409, 414 (Tex. 1970);Griffith v. Porter, 817 S.W.2d 131, 135 (Tex.App.-Tyler 1991). The Dell Agreement sets forth the terms of Ms. Adams' purchase of the computer from Dell. (Dell Agreement, p. 1).
Zale Lipshy's anticipatory breach would have no effect unless it was acted on by Zale Lipshy or was relied on by Borner. See e.g., Griffith v. Porter, 817 S.W.2d 131, 135 (Tex.App.-Tyler 1991, no writ). In this case, Zale acted upon their anticipatory breach by hiring an employee to replace Borner; thus, they actually breached the contract Thus, when Borner's leave expired and she returned to work on August 25, 1999. she was sent home and told that her job was no longer available.
The higher damage figure is also appropriate here because, as Texas courts have held, the plaintiff in a DTPA case is entitled to the most liberal recovery that he can plead and prove. See Farrell v. Hunt, 714 S.W.2d 298, 300 (Tex. 1986); Griffith v. Porter, 817 S.W.2d 131, 137 (Tex.App.-Tyler 1991, no writ); A.V.I., Inc. v. Heathington, 842 S.W.2d 712, 715 (Tex.App.-Amarillo 1992, writ denied). IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that the Plaintiff John Trickett shall recover Judgment against Defendant A.G. Edwards Sons, Inc. in the sum of $247,802, plus attorney fees in the amount of $82,000 for the preparation and trial of this case, $15,000 for an appeal to the Fifth Circuit Court of Appeals, and $40,000 for an appeal to the United States Supreme Court. It is further ORDERED that the Plaintiff shall recover taxable court costs and post-judgment interest on all sums at 6.052% per annum until paid.
Bernal Ex. 53.Griffith v. Porter, 817 S.W.2d 131, 135 (Tex. App.–Tyler 1991, no writ) (repudiation can be timely retracted by notifying the other party of intent to perform).B. Even if Bernal is entitled to specific performance with respect to the Dealership, Bernal cannot force the sale of the Real Estate owned by HBT Land
"The nonrepudiating party must do one or the other; it cannot do both." Id. (citing Griffith v. Porter, 817 S.W.2d 131, 135 (Tex.App. — Tyler 1991, no writ)). The nonrepudiating party must continue its performance under the contract if it chooses to ignore the statement and wait until the agreed upon time of performance.
Furthermore, the defendant can assert that it timely retracted its own repudiation by notifying the plaintiff that it intended to perform. See Griffith v. Porter, 817 S.W.2d 131, 135 (Tex. App.-Tyler 1991, no writ); Valdina Farms, Inc. v. Brown, Beasley & Assocs., 733 S.W.2d 688, 692 (Tex. App.-San Antonio 1987, no writ). The defendant must retract its repudiation before the plaintiff either has materially changed its position in reliance on the repudiation or has notified the defendant that it considers the repudiation to be final.
Furthermore, the defendant can assert that it timely retracted its own repudiation by notifying the plaintiff that it intended to perform. See Griffith v. Porter, 817 S.W.2d 131, 135 (Tex. App.-Tyler 1991, no writ); Valdina Farms, Inc. v. Brown, Beasley & Assocs., 733 S.W.2d 688, 692 (Tex. App.-San Antonio 1987, no writ). The defendant must retract its repudiation before the plaintiff either has materially changed its position in reliance on the repudiation or has notified the defendant that it considers the repudiation to be final.