dissenting.
I dissent. Although I agree the trial court’s judgment should be reversed, I disagree with the analysis in the majority opinion. Further, due to the lack of necessary pleadings in the trial court, we should not render judgment in this case, but rather should remand.
The relevant contract provisions appear in the February 8, 1985, standard earnest money contract form, promulgated by the Texas Real Estate Commission, titled:
ONE TO FOUR FAMILY RESIDENTIAL EARNEST MONEY CONTRACT (RESALE) ALL CASH, ASSUMPTION, THIRD PARTY CONVENTIONAL OR OWNER FINANCED
The form contract provides, in relevant part:
4. FINANCING:
C. THIRD PARTY FINANCED:
1.A third party first lien note of $220,-000, due in full in 15 years, payable in initial monthly payments of principal and interest not exceeding $2,364.141 for the first 15 years of the loan.
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Buyer shall apply for all third party financing ... within 7 work days from the effective date of this contract and shall make every reasonable effort to obtain the same. Such financing ... shall have been approved when Buyer has satisfied all of lenders’ financial conditions.... If such financing ... is not obtained within 45 days from the effective date hereof, this contract shall terminate and the earnest money shall be refunded to Buyer.
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9. CLOSING. The closing of the sale shall be on or before May 80, 1986....
EXECUTED in multiple originals effective the 31st day of March, 1986.
(Emphasis added.)
The buyers in this case complied with the contract by:
1. Applying for a loan within 7 working days of the effective date of the contract,
2. in the principal amount of $220,000 payable over 15 years, and
3. bearing an interest rate not exceeding 10% per annum. (The buyer sought 9-⅞% per annum interest.)
The buyers strictly complied with the terms of the contract. It is uncontested that the buyers did not obtain approval of the sought-after financing by May 15, 1986 (45 days after the effective date of the contract), and therefore, by its own terms, the earnest money contract terminated, and the buyers were entitled to a refund of their earnest money.
There is no evidence, and no finding of fact, that the parties made a written agreement, or an oral agreement prior to May 15, 1986, to extend the May 15 deadline.2 Further, the sellers do not claim the buyers breached the contract by failing to “make *702every reasonable effort” to obtain financing. The only breaches of the contract claimed by the sellers are that (1) the buyers did not apply for financing at the exact interest rate of 10% per annum, and (2) the buyers did not close on the sale by May 80, 1986.
The majority relies on Smith v. Evans, 620 S.W.2d 627 (Tex.App.—Dallas 1981, no writ). However, Smith v. Evans supports the position of this dissent, rather than the majority’s position. The actual holding in Smith v. Evans is:
[Wjhere the buyer’s contractual right to recover its earnest money is conditioned upon buyer’s inability to secure financing on stated terms, the condition is not met if the buyer fails to apply for a loan on the stated terms.
Id. at 627.
In Smith v. Evans, the earnest money contract was conditioned upon the buyer obtaining approval for a purchase money loan payable in 30 years, with interest not exceeding 9-⅞% per annum. The buyer applied for, and was approved for, a 25-year loan at 9-⅞% per annum interest. After the allowed time for seeming financing had elapsed, the buyer demanded return of his earnest money, claiming the loan for which he was approved was the best he could get under any application, and therefore it was not important that he did not apply for a 50-year loan at 9-⅞% interest. The Dallas Court of Appeals stated that, because the only application made by the buyer was on different terms than those specified in the contract, it was impossible to determine whether a loan on the specified terms would have been approved by the lender. Id. at 628. Therefore, the condition for the return of the earnest money had,not been met, and the buyer was not entitled to the earnest money. Id.
Unlike the buyer in Smith v. Evans, the buyers in the present case applied for a loan on the same terms that were stated in the earnest money contract, namely: a 15-year, $220,000 loan bearing interest at a rate not exceeding 10% per annum. The buyers did not receive approval of their loan application within the time specified in the contract, even though they apparently made every reasonable effort to obtain loan approval. Applying the reasoning of Smith v. Evans, the buyers were entitled to return of their earnest money.
In their first point of error, the buyers assert that the trial court “erred in granting a judgment against defendants because the contract expired as of May 15,1986, under its own terms.” I would sustain the buyers’ first point of error. However, because the buyers filed only a general denial in the trial court,3 I would reverse the judgment and remand the case to the trial court, in view of the fact the issue of the proper disposition of the earnest money in the registry of the court remains pending.4
. In other words, the loan shall bear interest at a rate not exceeding 10% per annum.
. An exception to the rule, that the parties to a written contract within the statute of frauds may not alter terms by oral agreement, permits parties to orally agree to extend the time of performance of the contract so long as the oral agreement is made before the expiration of the written contract. Dracopoulas v. Rachal, 411 S.W.2d 719, 721 (Tex.1967).
. The buyers did not file a counterclaim or any other pleading affirmatively seeking a judgment in their favor for return of the earnest money and attorneys' fees.
. Although not necessary to this dissenting opinion, I am compelled to comment on the second half of the majority opinion dealing with the typed loan application that seeks a loan at an interest rate of 10.5% per annum. I disagree with the majority’s conclusion that:
A denial of credit for a loan of 10.5%, all other elements of the applications being equal, permits the conclusion that an application for credit at 10% would have been denied as well. An additional .5% annual interest charge on a 15-year, $220,000 loan, amounts to an additional monthly payment of $118.21. This is not an insignificant amount, in my opinion.
I note that the record contains a June 17, 1986, letter from the mortgage company rejecting the buyers' application for a 30-year loan of $220,-000 at an annual interest rate of 10.5% interest. The monthly principal and interest payment for such a loan would be $2,012.43 (less than the $2,364.14 maximum monthly payment called for in the earnest money contract). I decline to comment on whether the rejected application for a 30-year loan was in substantial compliance with the earnest money contract terms, since the majority does not comment on that question.