I respectfully dissent.
The decisions of this Court have laid down the rule that a contract must be complete and certain in its terms before specific performance can be decreed. The case of Price v.Lloyd1 enunciated the rule that courts of equity will not specifically enforce any contract unless it is complete and certain, in which decision the court quoted from Pomeroy on Specific Performance of Contracts (Second Edition), Section 145, as follows:
This element of completeness must exist in every contract which can be specifically enforced, whatever be its external form, whether written or verbal, whether embodied in the memorandum required by the statute of frauds, or rendered obligatory by part performance, or by any other act which may obviate the prohibitions of that statute.
The rule enunciated by that decision and by other decisions of this court may be summarized as laying down the rule that a contract will not be enforced unless the terms are clear, certain, and unambiguous, and that nothing is left to conjecture or to be supplied by the court.2 In my view, the terms of the oral contract involved in these proceedings are not so clear and certain as to compel specific performance and thus avoid requirements of the statute of frauds. This is not a case where parties went into possession and made valuable improvements on the land.
Under the terms of the oral contract as approved by the majority the plaintiffs succeeded to the ownership of the home owned by the defendant by making a small down payment, the amount of which and its due date were the subject of conflicting evidence adduced at the trial, and the paying off of the mortgage on the premises. The contract contained no provision for the payment of interest, insurance, taxes, nor the type of conveyance required to complete the sale. Under the terms of agreement as upheld by the majority, the plaintiffs as buyers are in a more favored position than had they signed the usual real estate purchase agreement commonly used in the area. Defendant remained liable to pay the note and mortgage, but the plaintiffs did not agree to assume and pay that obligation. The contract was also advantageous to the plaintiffs inasmuch as there was no provision for forfeiture in the event of a breach of its terms.
A circumstance which tends to support the trial court's finding that the contract in question was not specifically enforceable by reason of its uncertainty and vagueness is the evidence that in 1966 the plaintiffs, *Page 1040 through their counsel, proffered to the defendant a proposed written contract the terms of which were in variance with the terms of the oral agreement they testified to at the trial. I am of the opinion that the plaintiffs have failed to sustain their burden of showing there was a meeting of the minds and that a definite and certain contract of sale had been entered into.
I would affirm except as to the judgment entered for damages and I would remand for redetermination of the amount of the award to the defendant upon the amount of $81 per month as the reasonable rental value.
HENRIOD, C.J., concurs in the dissenting opinion of TUCKETT, J.