Sun Medical, Inc. v. Overton

OPINION ON REHEARING

Bruce Overton presents his motion for rehearing, urging that we erred in reversing and rendering judgment that he take nothing in his suit against Sun Medical, Inc.

In our original opinion we held that Over-ton could not rely on the doctrine that a nonrepudiating party may treat the repudiation of a contract as inoperative where that nonrepudiating party did not or could not treat the repudiation as inoperative. We held that Overton did not have that option here because he did not continue to sell the product in his original territory whereas others did.

On rehearing, Overton urges that he did have the option to treat Sun Medical’s repudiation as inoperative because under his contract he was entitled to commissions for product sold in his original territory regardless of who might sell that product.

It is correct that the contract provides that Overton is to receive a commission on the gross profit per invoice of sales made within his territory, Oklahoma. However, as noted by Overton in his testimony, at the time the contract was made no one else but he was making any sales in Oklahoma. Therefore, we conclude that the only reasonable interpretation of the contract was that Overton was only to be paid commissions for sales that he, and not others, made'within his territory.

Overton relies on the eases of Townewest Homeowners Ass’n, Inc. v. Warner Communication, Inc., 826 S.W.2d 638 (Tex.App.—Houston [14th Dist.] 1992, no writ), Intermedies, Inc. v. Grady, 683 S.W.2d 842 (Tex.App.—Houston [1st Dist.] 1984, writ ref'd n.r.e.), Hart v. International Tel. & Tel. Corp., 646 S.W.2d 660 (Tex.Civ.App.—San Antonio 1977, writ ref'd n.r.e.), and others in support of his theory that when a contract calls for periodic payments, a new cause of action arises, and the statute of limitations begins to run anew each time a party breaches the contract by failing to make required payments.

We have previously distinguished the case of Intermedies, Inc. We also find Townew-est and Hart distinguishable. In Townewest, the cable company just announced that it was going to quit paying quarterly payments it had agreed to pay to the homeowners associ*563ation in exchange for the association allowing it to install cable TV. Tovmewest, 826 S.W.2d at 639. Because in that case the association had already performed its obligations under the contract, it was in a position to treat the cable company’s repudiation as inoperative. Id. at 640. In such a case, as we noted in our original opinion, limitations did not begin to run until each installment became due. See id.

Overton urges that Hart is exactly on point with this case. Hart, however, unlike this case, involved a commission salesperson who made sales but did not receive the quarterly commission she was due under her contract. See Hart, 546 S.W.2d at 661. There was no repudiation of the contract by her employer, it just did not. pay her the commissions due. Consequently, since she continued to perform the work for which she was due the commissions, she also, unlike Overton, was able to treat the contract as continuing in effect so that limitations did not run until each became due. See id. at 662.

We have examined each of the many cases cited by Overton on this point and do not find any to be inconsistent with our holding in the original opinion.

We therefore overrule Overton’s motion for rehearing.