(concurring in result).
I agree with the appellate disposition of this case in affirming the trial court.
However, I cannot accept that the original memorandum was, as the author depicts, “an oral agreement for the sale accompanied by a sufficient written memorandum.” (Emphasis supplied mine).
There did not exist, in my opinion, a sufficient written memorandum.
Nor do I agree with this statement of the author: “The trial court first concluded, and we agree, that the parties had formed an oral contract for the sale of land.”
Considering the evidence and the briefs of the litigants, I believe the trial court hit the nail on the head in concluding that the written memorandum expressed only a preliminary intent to contract. Here is my rationale:
1. During the second meeting, where the memorandum was created, Am-dahl displayed a contract for deed which he said (testified to) was to be a “guideline” for drawing a subsequent contract.
2. When Amdahl subsequently showed up at the Lowe farm, he had a contract for deed demonstrating totally different terms than previously discussed. Examples: a balloon payment clause altering the previous payment obligations contained in the memorandum; a new legal description and additional terms such as: date of possession, removal of a house, pre-payment clause, a provision relating to warranty deed and taxes, forfeitures, amendments, and time of payment clauses. Simply *778put, the contract for deed was a whale of a difference than the memorandum.
And that is why the parties’ conduct exhibits only a preliminary intent to contract in the memorandum. Conceptually, if there was an agreement (contract), and there were substantial revisions to an agreement, there is no enforceable contract because there is no unconditional acceptance or no contract at all. Sabow v. Hall, 323 N.W.2d 861 (S.D.1982).
Furthermore, Amdahl never signed the memorandum; he did make handwritten notations on the reverse side. Mary Lowe and David Lowe signed their names “Mary Lowe” and “David Lowe.” They did not ascribe that they were “trustees.” Amdahl knew, from the very first meeting with the Lowes, that the land was in trusteeship.
A party is not entitled to specific performance where the evidence establishes that there was only an expression of an intent to contract and nothing more. Nielsen v. Hokenstead, 81 S.D. 526, 137 N.W.2d 880, 881 (1965).
It appears to me that the parties never reached a final, integrated agreement by the written memorandum. In South Dakota, by statute, the court cannot grant specific performance if the alleged agreement does not contain terms which are sufficiently certain to make the precise act which is to be done clearly ascertainable. SDCL 21-9-2(6). On the essential terms of the contract, there was no meeting of the minds. Without a meeting of the minds, a trial court simply has nothing to fasten upon — nothing to glue together — no power to create uncertainty into certainty. Under Rossum v. Wick, 74 S.D. 554, 56 N.W.2d 770 (1953), such uncertainty precludes enforceability. Specific performance cannot lie under the weakly supported facts of this case. Perforce, the appeal dies of incipient collapse.
I am authorized to state that Chief Justice MILLER joins in this special writing.