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contract requirement. See Cowman v. Allen Monuments, Inc., 500
S.W.2d 223, 226 (Tex. Civ. App. 1973); Hudson v. Wakefield, 645
S.W.2d 427, 430 (Tex. 1983). In the case here, petitioners
materially breached the earnest money contract by failing even to
attempt to obtain outside financing, and, thus, they were not
entitled to specific performance.11 Since, under Texas law, the
right to specific performance resting on an equitable right
measures the time the equitable right comes into being, it is
clear that equitable title to the Foxbriar property did not pass
to petitioners prior to August 1992.
Moreover, the facts and circumstances surrounding the
contract in Boykin v. Commissioner, supra, are clearly
distinguishable from those in the instant case. Under the
contract at issue in the Boykin case, the “taxes for the current
year, current rents, insurance, interest (if any), and delay
rentals on oil and/or gas leases” were to be prorated as of the
11 Petitioners assert that their failure to formally apply
for financing resulted from the Hewitt’s failure to make repairs
that petitioners believed were necessary to comply with city
inspection codes. As stated previously, supra note 4, the
earnest money contract provided that "On Seller’s receipt of all
loan approvals and inspection reports, Seller shall commence
repairs". Petitioners never presented the Hewitts with any loan
approval (or any loan refusal) because they never formally
applied for financing. The Hewitts were required to do nothing
further under the contract until petitioners applied for
financing and were either approved or denied the same.
Petitioners’ failure to apply for outside financing and to tender
the purchase price constituted a breach of the earnest money
contract, regardless of their reasons therefor and, thus,
deprived them of the right to specific performance by that
contract.
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