This section contains the nature of the case and procedural background.

Humble (P) agreed to buy on option at $35,000 on an acre tract of land situated outside San Antonio from Westside (D). The option contract was supported by consideration. The strike date of the option was notice by 9:00 pm on 6-4-63 and by paying to D at the time of such notice or within 10 days the sum of $1750 earnest money. That sum with the $50 option price left a balance due and owing on the land of $33,200 to be paid as purchase money in accordance with the option contract. P paid the $1750 on May 14, 1963. D contends that the option agreement was rejected and repudiated by letters to D on May 2nd and May 14th. The May 2nd letter included a utilities clause that D would have the gas, water, sewer, and electricity extended to the property prior to closing. P's letter included a signature line for D with a request to sign and return. The May 14th letter repudiated the utilities clause and just exercised the option. All parties filed motions for summary judgment and D's was granted. P appealed.

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