(dissenting).
This dissent is respectfully submitted.
At the outset it should be noted that the trial court, in its order restraining Farm and Home from proceeding with its foreclosure, has concluded that such action would not only cause irreparable damage but also would be wrongful. The choice of the word wrongful would appear to be most unfortunate, especially when contained in an order restraining the enforcement of a remedy to which Farm and Home was clearly entitled.
The trial court’s order concluding that foreclosure would be wrongful enumerates three, and only three, grounds: (1) insurance coverage is not available, (2) appel-lees have not committed any acts of waste, and (3) appellees have made all monthly installment payments due and owing. Let us carefully examine each of these for Rule 683, T.R.C.P., specifically requires that every injunction set forth the reasons for its issuance. Failure to do so is fatal. Rothermel v. Goodrich, 292 S.W.2d 882, (Tex.Civ.App.) no writ hist.; Transport Co. of Texas v. Robertson Transports, Inc., 152 Tex. 551, 261 S.W.2d 549. It is upon these grounds, and these grounds alone, that the court’s order must find its support.
When Jon Rocco and wife purchased the property in question they assumed the indebtedness and all of the mortgage obligations. The covenant to provide insurance is clearly contained in the deed of trust. In it the grantors expressly and specifically covenant to keep the improvements insured against loss by fire and other hazards. The covenant continues, “* * * if default shall be made in payment, or part thereof, under the said note, or if for any reason (other than the fault of the holder of the note) the fire or other hazard insurance is cancelled or discontinued, or if the Grantors shall fail to keep or perform any of the covenants, conditions, or stipulations herein, then the said note * * * shall * * * become due and payable * * (Emphasis added). The deed of trust then empowers the trustee in the customary manner to foreclosure and sell the property.
Here the appellee Rocco, himself, testified that after the first policy of insurance was discontinued, that the premises were not then insured, and that the property had not been insured since the original policy was discontinued. In the intervening months that followed and up until the time of the court’s hearing no policy of insurance has been furnished to Farm and Home.
In addition to the trial court’s order reciting that “insurance coverage is not available” its findings of fact stated that “Plaintiffs have made repeated efforts to *754secure new insurance coverage, however, these attempts have proved to be unsuccessful.” Appellant contends there was no evidence or in the alternative, insufficient evidence to support the trial court’s finding that “repeated efforts” were made to obtain insurance coverage.
The total testimony appearing in the Statement of Facts and in the record before the Court on this issue was given by the appellee, Jon Rocco, in response to questions from his own attorney. It is as follows:
“Question: Have you tried to g£t insurance on the burnt house ?
“Answer: Yes, sir, we have.
“Question: Have you been successful?
“Answer: No, sir.
“Question: Why not ?
“Answer: Well, due to this legal action is one of the reasons and, secondly, they just wouldn’t handle it — one guy told us it was totally destroyed and he wouldn’t insure it.”
Objection was then made, “That’s a hearsay statement what somebody told him.” The Court responded, “Yes, sustained.”
Even had there been no sustained objection to the last question the most that this testimony shows is one unsuccessful attempt to obtain insurance by the appellee. The only reason assigned by the appellee for the unavailability of the insurance is the “legal action” that he himself instituted. With the objection having been sustained there is no evidence to support the findings of “repeated efforts” and “unavailability” of insurance. Even ignoring the sustaining of the objection there is insufficient evidence to support the findings of “repeated efforts” and “unavailability” of insurance. Findings of fact that are contrary to the undisputed evidence must be set aside. City of Houston v. Bullard, 354 S.W.2d 224 (Tex.Civ.App.), no writ hist.; Swanson v. Swanson, 148 Tex. 600, 228 S.W.2d 156.
In addition to this consideration, we have here a clear and unambiguous provision to provide insurance in the deed of trust that the holder thereof has every legal right to have enforced and effectuated as it is written. Citizens Nat. Bank in Abilene v. Texas & P. Ry. Co., 136 Tex. 333, 150 S.W.2d 1003. “* * * If the provisions of a contract are clear and unambiguous, there is then nothing in the agreement that will require construction by a court. In such a case, arbitrary rules of construction may not be resorted to. On the contrary, the agreement should be performed as written, and the court will enforce it according to its expressed terms.” 13 Tex.Jur.2d, p. 261, sec. 109. We believe it to be equally fundamental that when a deed of trust provides that insurance shall be maintained by the mortgagors, that a default in that respect provides the right of foreclosure. The failure to maintain insurance justifies foreclosure as fully as default in the installment payment obligation. Weierhauser v. Bennett, 19 S.W.2d 572 (Tex.Civ.App.), no writ hist. Difficulty or even impossibility of performance of an obligation of this nature will not excuse non-compliance. In Masterson v. Amarillo Oil Co., 253 S.W. 908 (Tex.Civ.App.), writ dismd., the severe financial depression throughout the country was given as the excuse for non-development of an oil and gas lease pursuant to its terms. The Court there stated, “It is presumed that a party will not assume an obligation which he is not able to perform. Whether such inability exists at the time of the execution of the contract or arises subsequently, unless there is a stipulation relieving the party under such circumstances from performance he is not excused.” See also Powell v. State, 118 S.W.2d 960 (Tex.Civ.App.), writ ref.; Cleaver v. Drake-Brannum Const. Co., 195 S.W. 206 (Tex.Civ.App.), no writ.
Here the major part of Farm and Home’s security has been undoubtedly de*755stroyed by fire. A very substantial portion remains, however, and there is no evidence in the record or finding by the court to the contrary. It cannot fairly be said that “nothing of insurable value remained after the fire” when the record, supported by the exhibits, clearly shows that the roof, rafters, walls, joists, beams of the bedrooms, the bathroom and its fixtures, the metal window frames and most of the exterior walls remained.
As long as the remainder continues uninsured, appellants stand to suffer further impairment, if not total destruction, of their security. This is the very thing that the continued-insurance covenant was designed to prevent. Even if the record gave support to the court’s finding of unavailability of insurance, such unavailability of insurance coverage will not excuse default on the part of the mortgagor.
The second ground given in support of the court’s restraining order is that “Ap-pellees have not committed any acts of waste.” The Rocco’s covenant contained in the deed of trust in this respect is to keep the premises in as good order and condition as when received. Of course, the only waste that is under consideration is that occurring subsequent to the fire. The deed of trust requires that the mortgagors “not commit or permit any waste, impairment, or deterioration.” (Emphasis added). The record is quite clear, and the majority opinion gives it emphasis, that in the intervening months following the fire the house has not been repaired, is open and exposed to vandals, is open and exposed to the elements, has been vandalized and is deteriorating.
Immediately after the fire, the Roccos cleaned out a part of the rubble and made some efforts at closing and protecting the fire damaged house. Thereafter, approximately six months elapsed during which time the efforts at closing the premises proved to be ineffective and the protective measures deteriorated and disappeared. There were acts of vandalism on the interior of the house and it was further depreciated. The house was open and exposed, at least in part, to the elements.
The appellee testified that about three weeks before the hearing in the trial court he went to the house and made some efforts at closing and covering it. These efforts were not effective or successful and the house was neither closed nor covered the day before the hearing in the trial court. Prior to that, however, approximately six months had passed in which nothing was done by the Roccos. Mr. Rocco testified, “That’s right. It’s the first time we have been able to get back to the property.” The trial court made no finding that the mortgagor has not permitted waste and no such finding could be justified on the basis of the record. The trial court only found that the plaintiffs had not committed any acts of waste. Failure to prevent waste has been held quite clearly to be a sufficient ground for foreclosure. A. R. Clark Investment Co. v. Green (Tex.Sup.Ct.), 375 S.W.2d 425.
The trial court’s third and final stated basis for the injunction was the “Appellees have paid all monthly installment payments due and owing.” It was stipulated that they did so until March 1, 1968. The payment of monthly principal and interest installments, however, clearly does not preclude foreclosure for the breach of other covenants. In A. R. Clark Investment Co. v. Green, supra, the Texas Supreme Court held, “This jurisdiction has never directly passed upon this question. However, we find that other jurisdictions in passing upon the question have almost uniformly held that the acceptance of installments due on a note is not a waiver of the right of acceleration when the right of acceleration arises out of some breach other than the failure to make an installment payment when due. * * * We adopt the view thus expressed.”
Of incidental significance is the notice given to the Roccos by Farm and Home. Though not controlling of the issues here, it was as follows: On August 29, 1967, Farm and Home notified the mortgagors *756that repairs on the home must be made. The Roccos made no response and made no repairs. On January 18, 1968, the Farm and Home notified the Roccos they were in default under the deed of trust and that the premises must be restored. The Roc-cos again gave no response and made no repairs. On February 28, 1968, Farm and Home still again notified the Roccos that the debt would be accelerated and that foreclosure would occur unless the Roccos either complied with their covenant obligations under the deed of trust or paid the debt. The Roccos again made no response and took no action of any nature. It was under these circumstances that the Trustee proceeded with posting for foreclosure, some six months after the date of the fire.
This is not a case where the mortgagee attempted to take advantage of some technical, temporary, or minor default. To the contrary, this situation had continued for six months before the loan was accelerated. This record will not support a finding of “no legal remedy” and “irreparable injury.” If Farm and Home should foreclose, it would be obligated by the mortgage to apply the proceeds in reduction of the debt. If appellants wrongfully foreclosed, the Roccos would have an adequate remedy in damages. There was no showing or suggestion that Farm and Home was insolvent or unable to respond in damages. Accordingly, the injunction should not have issued. Stiles v. Stieren, 121 S.W.2d 391 (Tex.Civ.App., 1938 no writ).
In the case at bar we have only three enumerated reasons set forth in the court’s order in support of it. These afford it no justification in fact or law. The court’s findings of fact have no support in the testimony and in such instance must be set aside. City of Houston v. Bullard, supra. Where there is an erroneous application of the law to the facts the temporary injunction must be dissolved.
In Dallas General Drivers, etc. v. Wamix, Inc. of Dallas, 156 Tex. 408, 295 S.W.2d 873, our Supreme Court said, “We are aware, of course, that the issuance of a temporary injunction to preserve the status quo pending a final trial of a suit on its merits is largely discretionary with a trial judge and that his judgment will be reversed only where the issuance of the writ was a clear abuse of discretion. Texas Foundries, Inc. v. International M. & F. W. Union, 151 Tex. 239, 248 S.W.2d 460; Transport Co. of Texas v. Robertson Transports, Inc., 152 Tex. 551, 261 S.W.2d 549. On the other hand, it is equally well settled that a temporary injunction will be dissolved if it is based upon an erroneous application of the law to the facts. Southland Life Ins. Co. v. Egan, 126 Tex. 160, 86 S.W.2d 722.”
It is respectfully submitted that the judgment of the trial court should be reversed and temporary injunction dissolved.