law is that when one party to a contract commits a material breach of that contract, the other party is discharged or excused from any obligation to perform.”). C. Analysis In light of the jury’s findings that Cimco failed to comply with the agreement (question 1), that Bartush failed to comply with the agreement (question 2), and that Cim-co failed to comply first (question 3), the jury’s “NO” answer to question 4 is a finding that Cimco’s first-occurring breach was not material. See Texas Pattern Jury Charges: Business PJC 101.2 (setting forth in comment the factors (a) through (e) used in question 4 here as factors relevant to a determination of whether a breach is material); Cont’l Dredging, Inc. v. De-Kaizered, Inc., 120 S.W.3d 380, 394 (Tex. App.—Texarkana 2003, pet. denied) (<HOLDING>). The jury’s “NO” answers to questions 4 and 5
recognizing that where a plaintiff failed to perform because of the defendants breach the plaintiff could recover damages caused by the defendants breach holding unchallenged jury finding that defendants subsequentlyoccurring breach was not excused by plaintiffs prior material breach required defendant to pay plaintiff per the terms of the agreement holding that after jury findings of dual breach unchallenged finding that defendants breach was not excused based on prior material breach of plaintiff constituted implicit finding that there was no material breach by plaintiff holding party in breach could not maintain suit for breach of contract holding immaterial breach did not constitute breach of contract