measure of damages. 248 S.W.2d 750 (Tex.Civ.App.-Waco 1952, writ ref'd). Tucker is distinguishable, however, because Tucker, and the line of cases that have followed it, held that where there has not been substantial performance of a building contract, the proper measure of damages is the measure of damages contractually agreed upon by the parties. Id. at 752; see also Fid. and Deposit Co. v. Stool, 607 S.W.2d 17, 20-21 (Tex.Civ.App.-Tyler 1980, no writ) (quoting Tucker, 248 S.W.2d at 751) (“[T]he correct measure of damages resulting from the breach of a building contract is ordinarily the reasonable cost of remedying the defects ... provided such contract has been ‘substantially performed.’ ”); Volkman v. Eakman, 496 S.W.2d 752, 758 (Tex.Civ.App.-Fort Worth 1973, writ ref'd n.r.e.) (<HOLDING>). TA conceded that there was substantial
holding that the proper measure of damages to repair defects for a building contract that has not been substantially performed is the contractually agreed upon measure of damages holding that where the customary measure of damages for a vendors failure or refusal to convey land was inapplicable the measure of damages must be flexible enough to vary with the necessities of the situation holding failure to raise issue of improper measure of damages in trial court waived review of complaints that proper measure of damages was not submitted to jury and that plaintiff failed to present evidence on the proper measure holding that the measure of damages for breaching a building construction contract is ordinarily such sum as is required to make the building conform to the contract holding that the proper measure of damages was the present value of all unaccrued payments that the plaintiff would have received if the contract had been performed