On Rehearing.
Both parties have filed motions for rehearing. Both are overruled.
In appellant’s motion but two errors are assigned, both relating to the measure of damage applied. We will further discuss that question.
The record in this ease shows a complete breach and repudiation by appellant of his obligations under a valid contract. The only real question at issue is the proper measure of damages for the breach by appellant of his obligation in futuro under the contract.
As we view this question, the contract furnishes two methods and two only, by which these damages can be estimated with reasonable certainty. One of these methods appellant must accept.
One method is to estimate by mathematical calculation the present value of the future monthly payments upon the basis of Charles Pollack’s life expectancy at the date of trial. This was the method adopted by the court below and by this court, and the correctness of which is assailed by appellant.
The other method is to estimate by mathematical calculation the present value of such monthly payments upon the basis of Henry Pollack’s life expectancy at the date of the trial and the present value, at the date of the trial, of the $100,000 worth of property which Henry Pollack obligated himself to bequeath and devise to Charles Pollack in the event Henry Pollack died first; such present value of the $100,000 to be computed by mathematical calculation, and such sum to be treated as payable at the expiration of appellant’s life expectancy, applying the same discount rate as the rate employed in computing the present value of the monthly installments, the cor-' rectness of which rate — :-4 per cent, per annum —appellant does not question.
According to argument upon rehearing filed by appellant the life expectancy of appellee at date of trial was 14.74 years, and appellant’s 11.67 years. Appellee’s expectancy is thus 3.07 years greater than appellant’s.
A mathematical calculation will establish that, if the second method had been employed, the judgment for damages against appellant would have exceeded by many thousands of dollars the judgment in fact rendered against him, for the reason that the present value of the $100,000 would exceed by many thousands the difference between the present value of the installments based upon appellee’s expectancy and such value based upon appellant’s.
So this record discloses that the error, if any, in estimating the damages, is favorable to appellant and he cannot complain thereof. See many cases to that effect cited in Michie Digest, 767; also cases cited at page 860 et seq., refusing to reverse for error in instructions upon measure of damages because cured by verdict and judgment.
Appellant suggests only one other method of estimating such damages, namely, the present value of the monthly payments computed upon the basis of the joint life expectancy of both appellant and appellee, which he says in his argument is 8.22 at the present time “January, 1930,” and computing it upon that basis, appellant asserts Charles Pollack can later recover of Henry Pollack’s estate *894property of tlie value of $100,000 in tlie event Henry dies first. To tlie adoption of this method there are two objections. In the first place it would not be in accordance with the terms of the contract. In the second place the suggested method is based upon the erroneous assumption that appellee could later sue for and recover of appellant’s estate the $100,000 in the event appellant dies first. But appellee has elected in this suit to sue for and recover “all the damages, past or future, resulting from the total breach of the contract.” See Pierce v. R. Co., 173 U. S. 1, 19 S. Ct. 335, 341, 43 L. Ed. 591, quoted in our main opinion.
The recovery herein would bar any subsequent action by appellee for breach of the contract. He recovers herein, once for all, the damages which he has sustained by appellant’s repudiation and breach. Litchenstein v. Brooks, 75 Tex. 196, 12 S. W. 975; 13 C. J. title Contracts, § 725; 3 Williston on Contracts, § 1292, at page 2339.
The parties have submitted no agreement as to the balance in arrears on the monthly payments, not barred by limitation, with interest. Appellee submits a computation show-' ing the balance due on such account, at date of trial, to be $20,295.50, which seems to be correct and is adopted by this court as the correct amount in arrears upon the monthly payments not barred by limitation and the amount of interest thereon to date of trial in the court below.