PJC Business

PJC 101.18

C ONTRACTS

PJC 101.18 Defenses—Instruction on Plaintiff’s Material Breach When Only One Party Claims a Material Breach Failure to comply by Don Davis is excused by Paul Payne ’s previous failure to comply with a material obligation of the same agreement. COMMENT When to use. PJC 101.18 may accompany PJC 101.7 when only one party asserts a claim based on a material breach of a written contract and the other party asserts fail ure of consideration as an affirmative defense of the plaintiff’s material breach of the agreement. Generally, when one party to a contract commits a material breach of that contract, the other party is discharged or excused from future performance. Bartush Schnitzius Foods Co. v. Cimco Refrigeration, Inc. , 518 S.W.3d 432, 436 (Tex. 2017); see also Mustang Pipeline Co. v. Driver Pipeline Co. , 134 S.W.3d 195, 196 (Tex. 2004). If the issue involves a lack of consideration, see PJC 101.1. A material breach excuses only future performance and therefore does not dis charge a claim for damages that have already arisen. Bartush-Schnitzius Foods Co. , 518 S.W.3d at 437. Source of instruction. The instruction is based on Mustang Pipeline Co. , 134 S.W.3d 195. Consideration essential. A contract is not enforceable if not supported by valid consideration. Alex Sheshunoff Management Services, L.P. v. Johnson , 209 S.W.3d 644, 651 (Tex. 2006). Consideration may be either a performance or a return promise bargained for in a present exchange. Roark v. Stallworth Oil & Gas, Inc. , 813 S.W.2d 492, 496 (Tex. 1991). Valid consideration requires that both parties regard it as con sideration for the contract. Connell v. Provident Life & Accident Insurance Co. , 224 S.W.2d 194, 196 (Tex. 1949); TCA Building Co. v. Entech, Inc. , 86 S.W.3d 667, 672 (Tex. App.—Austin 2002, no pet.). Consideration may consist of a benefit that accrues to one party or a detriment incurred by the other party. See Walden v. Affiliated Com puter Services, Inc. , 97 S.W.3d 303, 315 (Tex. App.—Houston [14th Dist.] 2003, pet. denied) (citing Roark , 813 S.W.2d at 496). “When a party agrees to do no more than that which he is already bound to do under an existing contract, the consideration is not sufficient to support a modification.” Arthur J. Gallagher & Co. v. Dieterich , 270 S.W.3d 695, 702 (Tex. App.—Dallas 2008, no pet.). Failure of consideration vs. lack of consideration. The doctrine of failure of consideration does not involve issues relating to contract formation but is usually an affirmative defense based on a claim that the party seeking to recover on the contract has breached it in a manner sufficient to excuse the other party’s noncompliance. US Bank, N.A. v. Prestige Ford Garland Ltd. Partnership , 170 S.W.3d 272, 279 (Tex.

72