OPINION ON MOTION FOR REHEARING
The Wildmans, defendants-appellees, in their motion for rehearing, contend (for the first time in this appeal) that “the evidence conclusively showed no written contract between Wildman and Cooper” because Cooper’s action in sending a new listing contract to them on November 8,1973 “repudiated any listing contract previously signed by the parties.” Accordingly, we have reviewed the evidence in its entirety. The contentions have no support in the record.
Cooper, upon receipt of the listing agreement dated November 1, 1973 (plaintiff’s exhibit 2), which had been previously signed by the Wildmans, signed the same and mailed a signed copy thereof to the Wild-mans on November 8, 1971. The following statements appear in the letter of transmittal, to-wit:
*86“Please find enclosed a- copy of our listing agreement for your files.
Mr. Wildman, I would prefer to have an exclusive listing agreement on the property in lieu of the present agreement. I would be agreeable to raising the listing price to $32,000 if an exclusive agreement could be obtained. A new listing agreement is attached for this purpose. You and Mrs. Wildman are requested to sign and return the original of this agreement if you are agreeable to giving an exclusive listing at the higher price.”
In order to repudiate a contract, the repudiating party must positively, unequi-vocably, and unconditionally refuse to perform the contract prior to the time fixed for performance. Moore v. Jenkins, 109 Tex. 461, 211 S.W. 975 (1919); Surko v. Harrison, 391 S.W.2d 115 (Tex.Civ.App.—Corpus Christi 1965, writ ref’d n. r. e.).
Cooper, in his letter of November 8, 1973, did not positively and unconditionally indicate that he had no intention of performing the listing agreement dated November 1, 1973. The proposed listing agreement was never signed by either Cooper or the Wildmans, and no evidence was offered by the Wildmans with respect thereto except to offer an unsigned copy thereof in evidence without comment or explanation. There is no evidence that the Wildmans were “agreeable to giving an exclusive listing at the higher price”. At best, the enclosure can only be construed as a new and separate offer by Cooper to the Wildmans, which was never accepted by the latter.
At all times prior to the filing of the motion for rehearing in this Court, the Wildmans consistently took the position that the listing agreement, dated November 1, 1973 and sued on by Cooper was an existing written contract between the parties. Their motion for an instructed verdict was based solely on the ground that Cooper failed to prove compliance “with the terms of the listing agreement signed by the parties and dated November the 1st, 1973, in that said listing agreement did state . that the terms of said sale would have to be agreeable to the defense, to the defendants . and that such earnest money contract presented to the defendants by plaintiff proposed only for a sales contract for cash, which was not acceptable by the defendants”. The thrust of the theory on which the action was defended prior to the filing of the motion for rehearing is further illustrated by the following quotations from the Wildmans’ appellate brief, wherein their counsel represented to this Court:
“Appellees state that the entire listing agreement, plaintiff’s exhibit 2, both front and back, comprised the agreement between the parties.
Briefly stated, the facts before the trial court were that appellant and appellees entered into a non-exclusive listing agreement which clearly indicated that appel-lees would finance the sale.”
The evidence conclusively showed a valid written listing contract between the parties, dated November 1, 1973, which was breached by the Wildmans. There was no evidence of a repudiation of that listing agreement. The motion for rehearing is overruled.