January 28, 1918. The opinion of the Court was delivered by This was an action for specific performance of an alleged contract for sale of real estate. After issue joined the cause was referred to the master to hear and determine all issues and report to the Court. The master filed his report, which was in favor of the defendant. Exceptions were filed thereto by the plaintiff, and the cause was heard by his Honor, Judge Memminger, who filed his decree reversing the master and decreed in favor of the plaintiff for a proper understanding of the case. The report of master and decree of his Honor will be incorporated in the report of the case. After filing of the decree defendant appealed and by eight exceptions imputes error on the part of his Honor and seeks reversal. The points raised by the exceptions will be considered together as they all challenge his Honor's finding of fact.
The enforcement of a contract for specific performance rests in the sound discretion of the Court, and in order for the plaintiff to avail himself of this doctrine: "He must *Page 263 show a clear, definite and unequivocal agreement together with acts of performance or parts of performance."
It is not a matter of absolute right but rests in the sound discretion of the Court and the exercise of that discretion will depend upon the facts and circumstances of each case a Court of equity will not decree specific performance unless the contract is fair, just and equitable, nor if it fails to express the true agreement of the parties by reason of fraud, accident or mistake. Crawford v. Crawford, 77 S.C. 211;Marthison v. McCutcheon, 84 S.C. 265; McChesneyv. Smith, 105 S.C. 178.
Measuring the facts of the case by the principles, the plaintiff's own testimony in the case fails to establish such a contract as the Courts ought to enforce. He testifies that he was to pay $300 for the place, but that no definite time was fixed for the payment of any of the installments; that he entered into possession of the premises in January; he does not know the year nor exactly when he entered — about two months after the trade; that he paid $100 before he went into possession; that he paid $5 about two years ago; that he had been in possession of the place about five years; that he bought the place for $300, and no definite time was fixed for the payment of the $300, and he was to pay from time to time, but no definite time was fixed for the payments, and nothing said about the amount of payments to be made at each payment; that the payments were to be made, not by the week, month, or year, but he "was to pay it along;" that nothing was said or spoken of about who was to pay it if he did not pay it before he died; that he was not to insure the house. The evidence shows that the only payments made on the contract were $100 in the fall of 1911 and $5 in 1912; that the plaintiff failed to keep the property insured or to pay the taxes thereon. The contract as attempted to be made by plaintiff's own evidence is one so vague, indefinite, indeterminate, and speculative, inequitable, and unjust that the Court cannot in good conscience *Page 264 decree the enforcement of the same. In this case the delay of plaintiff in making payment to the defendant of the purchase price, $300, is injurious. The defendant has been kept out of the money, purchase price, has received neither principal nor interest, and has all this time had to pay the taxes and insurance. The plaintiff has not performed the conditions of the contract, and to decree specific performance would be doing the defendant an injustice and wrong.
Exceptions 1, 2, 3, 4, 5, 6 and 7 are sustained.
Judgment reversed, and report of master confirmed.
Reversed.
MR. CHIEF JUSTICE GARY and MR. JUSTICE FRASER concur.
MR. JUSTICE GAGE dissents.
MR. JUSTICE HYDRICK did not sit.