On Motion for Rehearing
On the motion for rehearing appellee lessor points out that his suit was not for breach of contract, but was cast in equity as a suit for specific performance. This is true for he was apparently careful not to charge any breach of the lease contract, nor any breach of appellant’s promise to pay the sum of $787.50. The petition is in the nature of one demonstrating that lessor has fully performed according to contract, whereupon the lessee owes and is obliged to perform his promise, upon the inducement of which lessor discharged his own obligations. In other words, lessor insists that lessee “perform” by paying the sum of $787.50.
We have done our work on appeal with a rather liberal interpretation of the pleadings and counsel for lessor obviously has reached the opinion that we wholly treated the case as one for damages for breach of contract. Indeed, in our opinion, the case should be so treated. If the promisor has a contractual right either to perform his obligation or to páy a stipulated sum as liquidated damages, and the contract binds the promisee to accept the stated sum in lieu of performance, the promisee will be held to an action for damages. ■ 38 Tex.Jur., p. 490, “Specific Performance,” sec. 52 (Effect of Provision for Liquidated Damages or Penalty) “In General.”
Without enlarging upon our opinion unnecessarily we are obliged to notice that if the case should be controlled upon equitable principles, maxims thereof would lead us into action identical to that we have taken. In either event, the proper action by this court would be to remand the cause to the trial court.
Motion for rehearing is overruled.