dissenting.
I respectfully dissent.
The majority opinion holds that in order for specific performance to be available to the purchasers of the promissory note, the remedy of specific performance must have been available under § 473.303, RSMo. Supp.1984, before Mrs. Wooley’s death. Since Mrs. Wooley could not specifically perform at the time of or before her death (because of Mrs. McCabe’s outstanding interest in the note and mortgage), the opinion says, the personal representative could not be called upon to perform in specie even after the defense of impossibility of performance was removed.
The opinion gives § 473.303, supra, an entirely too restrictive reading. The aim of the statute is simply to put the personal representative in the place of the decedent, and to provide a procedure to compel him (or permit him) to do what the decedent would or could have been compelled to do, to wit, to perform the contract. The majority opinion gives the personal representative a defense to a suit for specific performance which the decedent would not have had. That interpretation of the statute is unnecessary and unintended. The remedy of specific performance is universally granted in an otherwise proper case when the original impossibility of performance is removed. Impossiblity of performance, in order to cut off the remedy of specific performance, must exist at the time of the decree. It is no defense to a suit for specific performance that the impossibility of performance had existed at some earlier time. See appendix attached hereto, which was an opinion prepared by me for adoption by the panel, but which did not get the agreement of my two colleagues.
The majority opinion, while basing its decision upon the premise that the remedy of specific performance was not available to the Ellises because of the existence of the defense of impossibility of performance at the time of Mrs. Wooley’s death, goes ahead to make some assertions and raise some doubts which ought not to go unchallenged.
The first such matter is whether § 473.-303, RSMo.Supp.1984, applies to any kind of contract except a contract for the conveyance of real estate. That question seems to me to have been fairly clearly answered by the amendment of 1980, effective January 1, 1981. The statute before that amendment by its terms applied only to contracts for the conveyance of real estate. The amendment eliminated any reference to real estate and was broadened to apply to any contract “specifically enforceable in equity”. The clear purpose of *446the amendment was to remove the earlier limitation to contracts for the conveyance of real estate.
The second matter which goes beyond what the opinion calls the dispositive point is the matter of the adequacy of the Ellis-es’ legal remedy by money damages. The opinion treats this note as if it were a bond which one might purchase on the open market. The opinion says you simply subtract from the present market value of the note the $55,000 which the Ellises agreed to pay. The difference would be the money damages which if the Ellises collected they would be made whole.1
But the note the Ellises contracted to buy from Mrs. Wooley was not a note or a bond which could be replaced in the market. It was their own obligation, secured by a lien upon their own real estate. It was a unique chattel. See attached appendix.
Finally, the opinion (in Footnote 2) doubts the efficacy of a Missouri specific performance decree, since the decree would not operate in rem to cancel the lien upon Texas real estate. A decree of specific performance in equity operates in person-am and there is no doubt that a Missouri court of equity could make its decree effective.
For the reasons mentioned above and for those mentioned in the appendix, I believe the trial judge was entirely correct in her ruling and I would affirm.
APPENDIX
The probate division of the Boone County Circuit Court after a court trial ordered Robert S. Bauer, the personal representative of the estate of Mae Kathryn Wooley, deceased, to perform a contract of the decedent with the claimants, Charles T. Ellis and Edith LaNell Ellis, by which the decedent had agreed to discount to the Ellises a certain promissory note owing by the Ellis-es to her. Sec. 473.303, 473.310, RSMo 1978, as amended L. 1980.
The personal representative appeals. We have examined his allegations of error and have concluded that the trial court judgment is correct. We therefore affirm.
The facts of the case are as follows:
Plaintiffs Charles T. Ellis and Edith La-Nell Ellis were obligors (by assumption) upon a promissory note dated November 16, 1981, payable to “Mae K. Wooley, a widow, and Madeleine Bauer”. The promissory note was secured by a deed of trust on a residence located in Dallas, Texas. The original amount of the note was $65,-000, the principal and interest payable in 59 equal monthly installments, with all the balance coming due at the end of five years. By May 19, 1983, the principal balance had been reduced to $64,752.14.
The note represented funds of Mae K. Wooley, and Madeleine had made no contribution thereto. The evidence is clear that she considered the note her own. She had it in her possession. She received the payments thereon. She dealt with it as her own.
In May 1983, Mrs. Wooley, a lady of advanced age, initiated negotiations with the Ellises to discount the note for cash. The amount of her first offer is not shown, but the Ellises countered with an offer to pay $48,000. She wrote to them on May 19 offering to accept $55,000. We do not have any evidence of a direct reply from the Ellises expressly accepting this offer. However, the parties stipulated to the following facts among others:
24. On or about May 22, 1983 (the Ellises) received (the Wooley letter offering to sell the note to them for $55,000 cash) and telephoned the decedent.
25. On or about May 23, 1983 (the Ellises) went to the office of Frank I. Hopkins, an employee of Southwest Land and Title Company, Dallas, Texas, and brought with them a copy of decedent’s (letter offering to transfer note for $55,-000 cash).
*44726. (The Ellises) requested that Frank L. Hopkins prepare the necessary documents to accomplish a release of the subject note in exchange for a prepayment by (the Ellises) to the decedent (Mrs. Wooley) of the sum of $55,000.
27. On May 26, 1983 Frank I. Hopkins mailed to (Mrs. Wooley) documents required to effect a release of the subject lien, which documents required the signature of both Madeleine Bauer McCabe and the decedent. Accompanying these documents was a letter written by Frank I. Hopkins dated May 26, 1983, a true and exact copy of which is appended hereto...
The Hopkins transmittal letter and the documents were received by Mrs. Wooley on June 1. The letter concluded: “Upon receipt of the executed release we will forward a cashier’s check from Charles Ellis in payment of the lien.”
Madeleine Bauer, the second payee on the promissory note, was the adopted daughter of Mrs. Wooley. During the times mentioned here, she lived in Fairfax, Virginia. She had been married to Robert S. Bauer (now the personal representative of Mrs. Wooley’s estate), but they had been divorced and she had evidently remarried. The relationship between Madeleine and her mother was discordant. Mrs. Wooley lived with Robert S. Bauer in Columbia, having moved there in December, 1982. At the time of her negotiations with the Ellis-es, she had been trying to secure from Madeleine a release of her interest in the note — or as she put it in a letter to Madeleine to “take your name off my note”. In February, 1983, her attorney had written to Madeleine sending her a document entitled “Assignment and Endorsement” for her execution, the effect of which would be to release her interest in the note. On June 16,1983 Madeleine executed this document. She returned it to Mrs. Wooley along with a letter dated June 17, 1983 — although the envelope is postmarked June 23. Exactly when this arrived at Mrs. Wooley’s residence we do not know, but it was received there in due course. In the meantime Mrs. Wooley had died on June 21, 1983. She was 89 years old at the time of her death.
Robert S. Bauer as personal representative of Mrs. Wooley’s estate declined to honor Mrs. Wooley’s agreement to sell the note for $55,000, and the Ellises commenced this specific performance suit, with the results noted in the first paragraph hereof.
I
Offer and acceptance.
The personal representative says first that there was no contract between Mrs. Wooley and the Ellises for the discount of the note for $55,000. The Ellises say on the other hand that Mrs. Wooley’s letter of May 19, 1983 containing an offer to discount the note for $55,000 was the offer, and that the Hopkins letter dated May 26, 1983, enclosing documents for execution by Mrs. Wooley and Madeleine, was their acceptance of Mrs. Wooley’s offer — and that a contract thereupon came into existence. The personal representative contends that the Hopkins letter was not an acceptance but was a counteroffer which would become a contract only upon acceptance by Mrs. Wooley. This argument he bases upon the hypothesis that the Hopkins letter imposed “additional requirements”. He says: “No contract could come into existence until Mrs. Wooley and Mrs. McCabe performed by signing the documents, obtaining notarization, and transmitting them to respondents.”
We reject the personal representative’s argument. We think the Hopkins letter did not impose “additional requirements”, but that it constituted an acceptance on Ellises’ behalf of Mrs. Wooley’s offer contained in her May 19 letter. It was implied in Mrs. Wooley’s offer that she would perform the routine acts necessary to complete her end of the deal. That the Ellises, through the Hopkins letter, required those acts to be performed did not impose any new obligation or condition upon Mrs. Wooley. Mrs. Wooley must be held to have expected to secure the transfer of title to the note— *448including the title of Madeleine Bauer McCabe — and must be held to have expected to execute the documents necessary to release the, lien of the promissory note.
The personal representative argues here that Mrs. Wooley was proposing to sell only her own interest in the note for $55,-000, leaving outstanding Madeleine Bauer McCabe’s interest. That is clearly not so. She treated the note as her own, thought of it as her own, dealt with it as her own, and supposed that it was her right to insist that Madeleine Bauer McCabe sign whatever was necessary to get her name off the note. As a further answer to this argument of the personal representative, we may add that the parties may be presumed not to have offered or accepted an absurd proposition, i.e., for the debtors to put out $55,000 cash without a release both of the promissory note and the real estate lien by both payees of the note.
We hold that the trial judge’s finding that a contract did exist between the Ellis-es and Mrs. Wooley is amply and inescapably supported by the evidence.
II
The personal representative next attacks the remedy of specific performance. He says that the remedy of specific performance is not in order in a case like this, in that the contract did not involve the conveyance of real estate or of a unique chattel. He says that the Ellises’ remedy by damages would have been adequate, and that therefore the equitable remedy of specific performance is unavailable to them.
The personal representative says also that since Madeleine Bauer McCabe was not a party to the contract between Mrs. Wooley and the Ellises, and since Mrs. Wooley could not require Mrs. McCabe to release her interest in the promissory note, that it was impossible for Mrs. Wooley to perform the contract and that this impossibility of performance prevents the specific performance remedy.
Adequacy of legal remedy.
We hold that the remedy of damages would not have been adequate, cf. Priest v. Oehler, 328 Mo. 590, 41 S.W.2d 783 (1931). See also Pomeroy Equity Jurisprudence, § 1402 (5th ed.) This promissory note does not have any prepayment privileges. Mrs. Wooley could have refused to accept.advance payment of the promissory note. McCarty v. Mellinkoff[118 Cal.App. 11], 4 P.2d 595, 596 (Cal.App.1931); Kohlenberg v. American Plumbing Supply Co. [82 Wis.2d 384], 263 S.W. [N.W.] 2d 496, 501-02; § 3-604, Uniform Commercial Code (adopted both in Missouri and Texas); 10 C.J.S. Bills and Notes § 462 (1938); 11 Am. Jur.2d Bills and Notes § 967 (1963). Therefore the only way to get the lien off the real estate was to get her to agree to release it. If the note had contained prepayment privileges, we would have a somewhat different case, in that the Ellises might then (if funds had been available to them) have paid the face amount of the note, and brought an action for the difference between the amount Mrs. Wooley had agreed to accept and the amount they were required to pay in order to secure the release. (We do not mean to say the right to prepay would have made specific performance unavailable to the Ellises; that case is not before us.) The personal representative does not undertake to instruct us how damages would be computed in the case we have before us or how, within the rules for the measurement of damages for breach of contract, a damage award could have been adequate. Cf. State ex rel. Dowd v. Turpin, 576 S.W.2d 754, 755 (Mo.App.1979); 81 C.J.S. Specific Performance Sec. 8b (1977).
This note was unique, because it was the obligation of the contracting buyers themselves, and it constituted a lien upon their real estate. They could not go into the market and replace it with another note. It was clearly a unique chattel. See Sedmak v. Charlie’s Chevrolet, Inc., 622 S.W.2d 694, 699 (Mo.App.1981.)
Impossibility of performance.
As to the impossibility of performance because Madeleine Bauer McCabe had not *449agreed at the time of the contract to release her interest, this point, too, must be ruled against the personal representative. It is true that a decree for specific performance would not have been possible at the time the contract was entered into, for the very reason suggested by the personal representative. Allen v. Allen, 285 Ala. 641, 235 So.2d 788 (1970); 81 C.J.S. Specific Performance, §§ 18b and 18c (1977). However, by the time of the decree Madeleine had released her interest in the promissory note. At the time the suit was filed, and certainly at the time of the decree, it was within the power of Mrs. Wooley’s personal representative to perform the contract. The defense of impossibility of performance relates to the time of the decree; if performance is possible at that time, it makes no difference that it might at some earlier time been impossible to perform. 81 C.J.S. Specific Performance §§ 18b and 18c (1977).
The judgment is affirmed.
. What if the note, because of the insolvency of the maker and the value of the security, were worth less than $55,000? Would the remedy of damages then be adequate?