Present: All the Justices 

ANNA LEE HORTON 

v. Record No. 961176 OPINION BY JUSTICE BARBARA MILANO KEENAN 

 June 6, 1997 

HOWARD P. HORTON 

FROM THE CIRCUIT COURT OF CLARKE COUNTY 

James L. Berry, Judge 

 In this appeal, we consider whether a plaintiff's breach of 

contract was material, barring her recovery for the defendant's 

nonperformance of the contract. 

 Anna Lee Horton and Howard P. Horton were married in July 

1984, and executed a contract in July 1991 (the 1991 contract). 

Mrs. Horton filed a motion for judgment against Mr. Horton in 

1995, seeking damages for his failure to comply with the 1991 

contract. Mr. Horton filed a counterclaim, alleging damages 

resulting from Mrs. Horton's breach of contract. 

 The trial court heard the following evidence in a three-day 

bench trial. In May 1989, Mr. Horton entered into a joint 

venture agreement with Charles and Elaine Longerbeam for the 

development and sale of lots in "Carlisle Heights," a subdivision 

in Frederick County. Mrs. Horton was not a partner in the joint 

venture. 

 The Longerbeams decided to terminate their joint venture 

with Mr. Horton due to the Hortons' marital difficulties. In 

January 1991, a dissolution agreement was drafted which provided 

that the Longerbeams and Mr. Horton would each take sole title to 

one-half the lots in Carlisle Heights. The Longerbeams were 

advised by counsel to obtain Mrs. Horton's signature on the 
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agreement for reasons unrelated to this case. Mrs. Horton's 

refusal to sign the document postponed execution of the agreement 

until May 1991, when Mr. Horton and the Longerbeams signed the 

document. Mrs. Horton did not sign the agreement with the other 

three parties at that time. 

 On July 10, 1991, Mr. and Mrs. Horton executed the 1991 

contract. This contract required Mrs. Horton to sign the joint 

venture dissolution agreement, and to execute a power of attorney 

appointing M. Tyson Gilpin, Jr., her attorney, to sign certain 

documents on her behalf, including the deeds to the Longerbeams 

and deeds to complete the sale of other lots. 

 The 1991 contract provided that the net proceeds from an 

anticipated sale of eleven lots, as well as from the future sale 

of other lots, would be deposited into an escrow account, from 

which the escrow agents would make payments due Mrs. Horton under 

the contract. Pursuant to the contract, Mr. Horton was 

obligated, to the extent he was financially able to do so, to 

supplement the escrow account if its assets were not sufficient 

to meet the periodic payments due Mrs. Horton. 

 Mrs. Horton signed the joint venture dissolution agreement 

on July 17, 1991, but she did not execute the power of attorney 

despite Mr. Horton's repeated requests. However, Mrs. Horton 

signed several "form" deeds and left them with Gilpin. When Mr. 

Horton sold a lot in Carlisle Heights, the settlement attorney 

notified Gilpin, who entered the legal description of the lot on 
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the signed deed and delivered the deed to the settlement 

attorney. Before each settlement, Mr. Horton requested that Mrs. 

Horton sign the power of attorney required by the 1991 contract. 

 In 1993, Mrs. Horton stopped signing the "form" deeds and 

began attending the real estate settlements. At the settlements, 

Mrs. Horton examined the documents and questioned the propriety 

of various provisions if they did not correspond to her 

interpretation of the 1991 contract. 

 Edwin B. Yost, an attorney who conducted the settlements on 

Mr. Horton's lots in Carlisle Heights, testified that Mrs. 

Horton's involvement in the settlement proceedings delayed the 

original settlement date for several of the lots because the 

parties were forced to wait for her signature. Yost also stated 

that, based on these delays, his clients began purchasing lots 

from the Longerbeams, even though the clients initially had 

conducted business with Mr. Horton. At that time, Mr. Horton was 

attempting to sell his lots for at least $2,000 less than the 

price of the Longerbeams' lots. 

 Mr. Horton supplemented the escrow account from his personal 

funds for three months in 1991, for four months in 1992, and for 

two months in 1993. However, beginning in May 1993, Mr. Horton 

refused to make any further supplemental payments to the account 

even though the account continued to have insufficient funds to 

pay all the expenses required by the 1991 contract. Mr. Horton 

did not further supplement the account. Mrs. Horton then filed 
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this motion for judgment against Mr. Horton, alleging that he 

materially breached the 1991 contract by failing to supplement 

the escrow account. 

 Mr. Horton filed a counterclaim, alleging that Mrs. Horton 

had breached the agreement by failing to sign the power of 

attorney, and by intentionally interfering with the lot sales. 

He alleged that her conduct resulted in a substantial loss of 

sales and profits. 

 The trial court concluded that Mrs. Horton's "attendance at 

the closings and failure to sign the deeds promptly caused Mr. 

Yost's clients to begin buying Longerbeam lots in preference to 

the less expensive Horton lots." The trial court entered 

judgment for Mr. Horton on the motion for judgment, ruling that 

although Mrs. Horton's failure to sign the joint venture 

dissolution agreement before July 1991 could not be considered a 

breach of the 1991 contract since it was not yet in existence, 

her failure to sign the power of attorney required by the 1991 

contract constituted a material breach of that contract. The 

trial court did not rule on Mr. Horton's counterclaim. 

 On appeal, Mrs. Horton contends that her failure to sign the 

power of attorney was not a material breach of the 1991 contract 

because she fulfilled the purpose of that requirement by signing 

the "form" deeds. She further asserts that there is no evidence 

that her attendance at the settlements or her delay in signing 

any deeds resulted in the loss of lot sales. Mrs. Horton 
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contends that by proceeding with the sale of the lots, Mr. Horton 

accepted her substituted performance of signing "form" deeds, and 

that this acceptance relieved her of the obligation to sign the 

power of attorney. Finally, Mrs. Horton argues that even if she 

did breach the contract, the trial court erred in relieving Mr. 

Horton of his own obligations under the contract and in failing 

to award both parties their respective damages. 

 In response, Mr. Horton asserts that there was sufficient 

evidence for the trial court to conclude that Mrs. Horton's 

failure to sign the power of attorney was a material breach of 

the 1991 contract. Mr. Horton argues that the purpose of that 

contract was to facilitate lot sales and to avoid Mrs. Horton's 

interference in the settlement proceedings. He contends that the 

evidence showed that Mrs. Horton defeated this purpose by 

delaying the settlements to such an extent that potential 

purchasers ceased doing business with him, and bought similar, 

but more expensive, lots from the Longerbeams. We agree with Mr. 

Horton. 

 On appeal, we review the evidence in the light most 

favorable to Mr. Horton, the prevailing party at trial. Tuomala 

v. Regent University, 252 Va. 368, 375, 477 S.E.2d 501, 505 

(1996); W.S. Carnes, Inc. v. Chesterfield County, 252 Va. 377, 

385, 478 S.E.2d 295, 301 (1996). Since the trial court heard the 

evidence ore tenus, its findings based on an evaluation of the 

testimony have the same weight as a jury verdict. Tuomala, 252 
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Va. at 375, 477 S.E.2d at 505-06; RF&P Corporation v. Little, 247 

Va. 309, 319, 440 S.E.2d 908, 915 (1994). Under Code § 8.01-680, 

we will uphold the trial court's judgment unless it appears from 

the evidence that the judgment is plainly wrong or without 

evidence to support it. Tuomala, 252 Va. at 375, 477 Va. at 506; 

W.S. Carnes, Inc., 252 Va. at 385, 478 S.E.2d at 301. 

 Generally, a party who commits the first breach of a 

contract is not entitled to enforce the contract. Federal 

Insurance Co. v. Starr Electric Co., 242 Va. 459, 468, 410 S.E.2d 

684, 689 (1991); Hurley v. Bennett, 163 Va. 241, 253, 176 S.E. 

171, 175 (1934). An exception to this rule arises when the 

breach did not go to the "root of the contract" but only to a 

minor part of the consideration. Federal Insurance Co., 242 Va. 

at 468, 410 S.E.2d at 689; Neely v. White, 177 Va. 358, 366, 14 

S.E.2d 337, 340 (1941). 

 If the first breaching party committed a material breach, 

however, that party cannot enforce the contract. See Neely, 177 

Va. at 366-67, 14 S.E.2d at 341. A material breach is a failure 

to do something that is so fundamental to the contract that the 

failure to perform that obligation defeats an essential purpose 

of the contract. See Ervin Construction Co. v. Van Orden, 874 

P.2d 506, 510-11 (Idaho 1993); Cady v. Burton, 851 P.2d 1047, 

1052 (Mont. 1993); Management Computer Services Inc. v. Hawkins, 

Ash, Baptie & Co., 557 N.W.2d 67, 77-78 (Wis. 1996). If the 

initial breach is material, the other party to the contract is 
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excused from performing his contractual obligations. See Neely, 

177 Va. at 367, 14 S.E.2d at 341; Bernstein v. Nemeyer, 570 A.2d 

164, 168 (Conn. 1990); Eager v. Berke, 142 N.E.2d 36, 39 (Ill. 

1957); Quintin Vespa Co. v. Construction Service Co., 179 N.E.2d 

895, 899 (Mass. 1962); Gulf South Capital Corp. v. Brown, 183 

So.2d 802, 804-805 (Miss. 1966); Management Computer Services, 

Inc., 557 N.W.2d at 77. 

 Here, as consideration for the contract, Mrs. Horton was 

required to sign two documents, the joint venture dissolution 

agreement and the power of attorney. The evidence showed that 

the purpose of the power of attorney, and an essential purpose of 

the contract itself, was to facilitate lot closings by ensuring 

Mrs. Horton's cooperation in the settlement proceedings. As Mr. 

Horton and Yost testified, Mrs. Horton's refusal to sign the 

power of attorney and her interference in the settlement 

proceedings delayed lot closings and led to the loss of potential 

lot sales. 

 We disagree with Mrs. Horton's argument that a material 

breach was not proved since Mr. Horton failed to establish an 

amount of damages actually incurred as a result of her conduct. 

The type of evidence required to establish a material breach of 

contract will vary depending on the facts surrounding a 

particular contract. See Restatement (Second) of Contracts § 241 

cmt. a (1979). In many cases, a material breach is proved by 

establishing an amount of monetary damages flowing from the 
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breach. See, e.g., Federal Insurance Co., 242 Va. at 468, 410 

S.E.2d at 689. However, proof of a specific amount of monetary 

damages is not required when the evidence establishes that the 

breach was so central to the parties' agreement that it defeated 

an essential purpose of the contract. See, e.g., J.P. Stravens 

Planning Associates, Inc. v. City of Wallace, 928 P.2d 46, 49 

(Idaho Ct. App. 1996); Rogers v. Relyea, 601 P.2d 37, 40-41 

(Mont. 1979); Macon Mining & Manufacturing, Inc. v. Lasiter, 658 

P.2d 505, 507 (Or. Ct. App. 1983). As noted above, there was 

sufficient evidence to support the trial court's conclusion that 

Mrs. Horton's breach defeated an essential purpose of the 

contract. Thus, Mr. Horton proved a material breach of contract 

which excused his nonperformance and prevented Mrs. Horton from 

enforcing the contract.*

 See Neely, 177 Va. at 367, 14 S.E.2d at 

341; Hurley, 163 Va. at 253, 176 S.E. at 175. 

 Mrs. Horton contends, however, that Mr. Horton accepted her 

performance of signing "form" deeds, and thus waived his right to 

assert her failure to sign the power of attorney as a defense to 

his nonperformance. We disagree. 

 A party claiming waiver must show a "knowledge of the facts 

 

 *We also disagree with Mrs. Horton's contention that the 

trial court ruled she breached the 1991 contract by failing to 

sign the joint venture dissolution agreement in May 1991. 

Although the trial court stated that Mrs. Horton's delay in 

signing the joint venture dissolution agreement "permitted the 

avoidance of the eleven lot transactions," whose sale was pending 

prior to the execution of the 1991 contract, the court did not 

rule that her conduct prior to the signing of the 1991 contract 

constituted a material breach of that contract. 
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basic to the exercise of the right [waived] and the intent to 

relinquish that right." Stuarts Draft Shopping Ctr. v. S-D 

Associates, 251 Va. 483, 489-90, 468 S.E.2d 885, 889 (1996) 

(citation omitted); Stanley's Cafeteria v. Abramson, 226 Va. 68, 

74, 306 S.E.2d 870, 873 (1983). Acceptance of defective 

performance, without more, does not prove intent to relinquish 

the right to full performance. Id. at 74, 306 S.E.2d at 873; see

5 Samuel Williston & Walter H.E. Jaeger, A Treatise on the Law of 

Contracts § 700 (3d ed. 1961). 

 Here, the evidence affirmatively showed that Mr. Horton did 

not intend to relinquish his contractual right to secure a power 

of attorney from Mrs. Horton. As stated above, before each 

settlement, Mr. Horton requested that Mrs. Horton sign the power 

of attorney as required by the 1991 contract. These repeated 

requests establish that Mr. Horton did not waive his right to 

assert Mrs. Horton’s failure to sign the power of attorney as an 

excuse for his nonperformance. 

 Finally, we find no merit in Mrs. Horton's argument that the 

trial court rescinded or nullified the contract when the court 

should have awarded Mr. Horton damages for any losses he 

sustained as a result of her breach. The trial court did not 

rescind or nullify the contract, but ruled that Mrs. Horton's 

material breach of the contract excused Mr. Horton's 

nonperformance. As Mrs. Horton's counsel acknowledged in oral 

argument before this Court, a party who has materially breached a 
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contract is not entitled to recover damages for the other party’s 

subsequent nonperformance of the contract. 

 For these reasons, we will affirm the trial court's 

judgment. 

Affirmed.