Tbe honorable Court of Civil Appeals, in reversing tbe judgment of. tbe trial court, did not find it necessary to pass upon an assignment of error urged by defendants in error, who were appellants in that court, and defendants in the trial court, complaining of the trial court’s refusal to submit to the jury the following requested issue: “Do you or not believe from tbe evidence that the plaintiff R. E. Powers ceased making the monthly payments on tbe contract sued on herein because of bis financial inability to continue such payments? Let your answer be ‘Yes’ or ‘No’ as you may find the facts to be.”
Having reversed the judgment of the Court of Civil Appeals, and affirmed that of the trial court, without any consideration of’ that assignment, we are now' requested by defendants in error to pass upon it, as they are in the attitude of seeking a reversal of the trial court’s judgment on tbe issue of voluntary abandonment of tbe contract by plaintiff in error, claimed to have been pleaded in bar in their answer, as follows: “The plaintiff made his monthly payments on said contract, to the Houston National Bank, as therein provided, until January 19, 1927, when be made bis last payment of $39.50 and thereafter, without justification and ■without material or substantial fault on defendants’ part, and in violation- of bis contract, ceased to make said payments to said bank and abandoned bis said contract, wherefore he is not entitled to recover herein.”
Defendants in error supported their theory of plaintiff in error’s abandonment by the testimony of two witnesses (one a defendant in tbe case) to tbe effect that plaintiff in error stated to them that he was financially unable to continue the' monthly payments — though they could not fix the exact dates when such statements, if any, were so made to them. Plaintiff in error
It is uncontroverted, however, that he continued mating his payments, the last on January 19, 1927, after defendants in error had failed to carry out the contract by not widening Sunnyland street and beginning the .other improvements in question, on or before September 1, 1926, and prosecuting such work with all due diligence and dispatch.
Whether, under the circumstance's, such specially requested issue should have been submitted to the jury (conceding to defendants in error the full force and effect of such testimony, and discarding that of plaintiff in error contradictory thereof) as necessary to the correct disposition of the case becomes, therefore, a question of law properly determinable here, and need not be remanded to the Court of Civil Appeals. Holland v. Nimitz,
If we view only the testimony in favor of defendants in error on this issue, giving it full credit, and indulging in every conclusion in its favor, it proves only that plaintiff in error intended to cease making his payments because of financial inability to meet them and abandon the contract, at some future- time. As above stated, the evidence is uncontroverted that, after the defendants in error had failed in the performance of their part of the contract on or before September 1, 1926, plaintiff in error continued paying the monthly installments specified in the contract up to and on January 19, 1927. This being true, the intention or threat to quit at some future time did not constitute a present breach of the contract.
As said by Judge Brown in Kilgore v. Northwest Texas Baptist Educational Association,
In Hardeman-King Lumber Co. v. Hampton Bros.,
Mr. Elliott, in his work on Contracts (voi. 3, § 2032), adopts this view of the law, and cites Judge Brown’s opinion in support thereof.
We therefore conclude that Powers did not abandon the contract, but it was ante-cedently breached by the defendants in error, and the district court did not err in refusing to submit the special issue in question. 3 Tex. Jur. § 285.
We have again carefully considered the entire record in this case, as well as our main opinion, which we adhere to, and therefore recommend that the motion for rehearing be overruled.