This suit аrose from an alleged breach of a contract between Petitioner, Don K. Hanks, d/b/a Hanks Claims Service (“Hanks”) and GAB Business Services, Inс. (“GAB”) for the sale of an insurance adjusting business. The trial court rendered judgment for GAB. The court of appeals affirmed.
In May of 1977, Hanks contracted with GAB for the sale of his insurance adjustment business. The contract specifically included accounts receivable, ninety-five items of office furniture, goodwill, and a five-year covenant not to сompete. The contract price of $95,000 provided for payments of $28,000 at closing, $33,500 due one year from the date of closing, and the balance due two years from closing. In connection with the sales contract, Hanks signed an employment contract with GAB, which also contained a covenant not to compete.
Approximately one year later, after GAB had paid the $33,500 installment, а dispute between the parties arose and Hanks resigned his position with GAB. Hanks commenced competing with GAB in violation of the non-competition agreement. Hanks continued to compete until March of 1979, when he voluntarily ceased competition.
*708 During the time that Hаnks was competing, GAB filed suit seeking injunctive relief and attorneys’ fees for Hanks’ violation of the covenant not to compete. In July оf 1979, after GAB failed to tender the last installment, which was then overdue, Hanks filed an amended answer and counterclaim for the final payment, exemplary damages, and attorneys’ fees. Later, GAB filed an amended petition seeking damages in addition to injunctive relief and аsking to be excused from the final installment.
In response to the special issues submitted at trial, the jury found that GAB had been damaged in the amount оf $1,200 for the eight month period in which Hanks actively competed in violation of the non-competition agreement and $5,850 future damages for the remainder of the five-year covenant period. GAB moved for judgment, requesting the permanent injunction and excuse from pаying the final installment, in addition to the award of damages and $6,000 stipulated attorneys’ fees. At that time, the trial court required GAB to make an elеction between the jury award and the excuse remedy, whereupon GAB elected to be excused from making the final $33,500 payment. The triаl court then entered judgment, excusing GAB from making the final installment, and awarding attorneys’ fees on the contract.
The question presented by this case is: Did Hanks’ breach of the covenant not to compete excuse GAB’s obligation to pay the final installment due for the business purchased? The court of appeals applied the rule of
Morgan v.
Singley,
A prerequisite to the remedy of excuse of performance is that covenants in a contract must be mutually dependent promises.
Morgan v. Singley, supra.
In the instant case, this rule does not apply because the covenant not to comрete should properly be classified as an independent promise. “The rule is that ‘when a covenant goes only to part of the consideration on both sides and a breach may be compensated for in damages, it is to be regarded as an independent сovenant, unless this is contrary to the expressed intent of the parties.’ ”
World Broadcasting System, Inc.
v.
Eagle Broadcasting Co.,
Any right GAB had to partially rescind the contract when Hanks breached the covenant not to compete has been waived. A party who elects to treat a contract as continuing deprives himself of any excuse for ceasing performance on his own part.
See Board of Regents, University of Texas v. S & G Construction Co.,
*709
In holding that GAB had not elected its remedy prior to judgment, the court of appeals relied on this Court’s decision in
Bocanegra v. Aetna Life Ins. Co.,
Finally, Hanks argues that there is no evidence to support the jury’s finding of $5,850 future damages for the rеmaining period of the five year covenant. The court of appeals did not reach this question because it held that GAB was excused from performance. We disagree with the trial court’s judgment on this point. The bulk of GAB’s evidence on future damages was excluded by the triаl court. The remaining testimony consisted of speculation as to future losses. GAB only introduced records of claims and gross amounts rather than completed work or overhead figures necessary to compute future profits.
The judgments of the courts below are reversed and judgment is here rendered that Hanks recover the final installment with an offset for the $1,200 damages found by the jury in favor of GAB plus prejudgment interest from June 1, 1979, to date of judgment. In light of the fact that both parties prevailed on their respective actions under the contract, we render judgment that neither party recover attorneys’ fees.