dissenting.
I respectfully dissent. In points of error one and two, Glockzin asserts that: (1) the evidence established, as a matter of law, that Rhea breached a “severable” contract for repair services; and (2) the jury’s failure to find a breach of the contract for services is against the great weight of the evidence. These points of error should have been sustained, and the judgment should have been affirmed in part and reversed and rendered in part.
The majority’s conclusion that the jury could have reached the decision that Rhea did not breach his contract with Glockzin apparently hinges on the belief that Glockzin’s and Rhea’s obligations, to each other, are not severable. In my opinion, the majority’s decision on the two points of error rests upon this belief. Therefore, the seminal question is whether Glockzin was entitled to repair work pursuant to his warranty agreement with Rhea, in spite of the fact that he had failed to make or complete payment for the initial repair work. I would answer the question in the affirmative for two reasons.
First, it is undisputed that the truck’s failure on April 3, 1985, was due to the fault of Rhea’s materials and workmanship. Rhea admitted that the problem was due to his repair work, and that it was covered under the February 14th warranty agreement, but he refused to repair the truck until Glockzin’s “entire” account balance was paid. The record shows that, although separate invoices were issued for each repair, and a separate 90-day warran*669ty was extended for each repair, Rhea maintained one account for Glockzin. The record further shows that Rhea had applied all payments to the account, yet refused to admit that any reduction had occurred in the one invoice under which he had a warranty obligation. For example, on April 8th, Glockzin tendered a payment to Rhea for $2,000 that was applied to Glockzin’s account. However, none of the $2,000 was applied to the February invoice.
A warranty is an agreement, collateral to the sale of goods or service, by which the seller undertakes to vouch for the condition or quality of the goods sold or service provided. See Western Tank & Steel Corp. v. Gandy, 385 S.W.2d 406, 409 (Tex.Civ.App.—Texarkana 1964, no writ). Even though a warranty is a part of a sales contract, it is an independent subsidiary promise, collateral to the main object of the contract, the breach of which gives rise to a cause of action for damages. El Paso & S.W.R. Co. v. Eichel & Weikel, 130 S.W. 922 (Tex.Civ.App.1910, writ ref'd). Unless there is a breach of the “whole” contract giving rise to the right to suspend or terminate performance, a seller is not authorized to repudiate his obligation under the warranty agreement. Tex.Bus. & Com.Code Ann. § 2.612(c) (Vernon 1968); see Steinlein v. S. Blaisdell, Jr. Co., 44 S.W. 200 (Tex.Civ.App.1898, no writ); Southern Car Mfg. & Supply Co. v. Scullin-Gallagher Iron & Steel Co., 38 Tex.Civ.App. 112, 85 S.W. 845 (Tex.Civ.App.1905, no writ). There is no evidence that the “whole” contract was breached. In fact, the trial court had previously intervened permitting Glockzin to post a bond in the amount of $12,000 to cover the balance owed under the account. This bond, in my opinion, made appellee whole. Appellee simply needed to establish the reasonableness and accuracy of its account and collect on the bond. Certainly this bond was equal to if not a guarantee, that the appellee would receive the account balance.
Under the law applicable to this case, it is immaterial whether the jury accepted Glockzin’s version of the facts because the undisputed evidence shows that Rhea: (1) was obligated under the February 14th warranty agreement; and (2) refused to honor that warranty agreement solely because of the past due status of Glockzin’s account. No agreement existed between Rhea and Glockzin to the effect that Rhea’s warranty obligation was dependent upon Glockzin’s timely payment.
I would conclude that the parties agreements are “severable,” independent contracts, as a matter of law. Either party could commence and maintain a cause of action against the one independent of the other. This is apparent because neither claim is a compulsory counterclaim, but each requires breach before a cause of action accrues. The jury’s failure to find a breach of contract is against the great weight and preponderance of the evidence. Moreover, because Rhea maintained all of Glockzin’s invoices under one open account, and because he continued to accept payment on the account even after he refused to honor the warranty, he was estopped to assert that the warranty was dependent on the payment of the entire account or any particular part of the account.
I would sustain points of error one and two, reverse the take-nothing judgment against Glockzin, render judgment for Glockzin in the amount of $6,693.11, and in all other respects affirm the judgment.