Claude W. McElwee for appellants. (1) This is an equity case, and while the Supreme Court will give due deference to the chancellor's findings, it must weigh the evidence and reach its own findings of facts. Edinger v. Kratzer, 175 S.W.2d 807; Shepard v. Shepard, 186 S.W.2d 472; Wegmann v. St. Louis, 47 S.W.2d 770; Bowzer v. State Highway Commission, 170 S.W.2d 399. (2) The manner in which the alleged verbal contract is to be performed is not definitely specified, the alleged verbal contract is vague, indefinite and incomplete, and its terms are not clear, and, therefore, a decree for specific performance cannot be granted to enforce it. Hayworth v. Hayworth, 236 S.W. 26; McCall v. Atchley, 256 Mo. 39; Baldwin v. Corcoran, 7 1176 S.W.2d 967; Jesse v. Rolaff, 74 S.W.2d 890. (3) The trial court decreed the performance of terms and provisions which were not alleged or proven to be contained in the alleged verbal contract sued on, herein, and, the court, in effect, made a contract for the plaintiff and Stephan Gerbrich, and then decreed its enforcement. Hayworth v. Hayworth, 236 S.W. 26; McCall v. Atchley, 256 Mo. 39; Baldwin v. Corcoran, 7 S.W.2d 967; Jesse v. Rolaff, 74 S.W.2d 890. (4) The court erred in entering the decree herein because, this is an action to enforce the performance of a verbal contract which is barred by the positive terms of the Statute of Frauds (Sec. 3454, R.S. 1939), and plaintiff failed to allege and prove a case which meets the rigid requirements of the definite rules which have been established for the granting of specific performance of verbal contracts, as an exception to the positive terms of the Statute of Frauds, to prevent gross injustice.
(1) The alleged contract pleaded by reference and filed with plaintiffs' petition is too vague and indefinite to support a decree in equity for specific performance. Baldwin v. Corcoran, 7 S.W.2d 967; Henry v. Adkins, 194 S.W. 264; Terry v. Michalak, 3 S.W.2d 701, 319 Mo. 290. (2) The alleged contract pleaded and filed with plaintiffs' petition is unilateral and as such was and is unenforceable against the plaintiffs at the time of its alleged execution and delivery, to-wit, August 14, 1944, and was and is unenforceable in an action against the defendants below in an action for specific performance. Jesse v. Rolaff, 74 S.W.2d 890; Reynolds v. South Side Natl. Bank, 74 S.W.2d 297; State ex rel. St. Louis Car Co. v. Hughes, 152 S.W.2d 193; Hudson v. Browning, 264 Mo. 58, 174 S.W. 393; Bearup v. Equitable Life Assur. Soc. of U.S., 172 S.W.2d 942; Huttig v. Brennan, 41 S.W.2d 1054. (3) The alleged contract pleaded and filed with plaintiffs' petition being unilateral, it was unenforceable at the time of its execution and delivery on August 14, 1944, and part performance, if any with the knowledge and consent of defendants was insufficient to put the alleged instrument into force and ef
40 N.E. 700, 700 (1895); Trahant v. Perry, 253 Mass. 486, 489, 149 N.E. 149, 150 (1925); Skyles v. Burge, 789 S.W.2d 116, 118, 119 (Mo. App. 1990) (suggesting also that the rule should not apply in residential mortgages when principal and interest to maturity are tendered); Moore v. Kime, 43 Neb. 517, 521, 61 N.W. 736, 738 (1895); Peter Fuller Enters. v. Manchester Sav. Bank, 102 N.H. 117, 120, 152 A.2d 179, 181 (1959); Geller v. Fairmont Assocs., 172 A.D.2d 915, 568 N.Y.S.2d 202, 203 (N.Y.App. 1991); Arthur v. Burkich, 131 A.D.2d 105, 106-08, 520 N.Y.S.2d 638, 639-40 (1987); Henderson v. Guest, 197 Okla. 443, 445, 172 P.2d 605, 606 (1946); Pyross v. Fraser, 82 S.C. 498, 64 S.E. 407 (1909); McCausland v. Bankers Life Ins. Co., 110 Wn.2d 716, 723, 757 P.2d 941, 944-45 (1988) (en banc), and in cases involving various forms of land installment contracts, see Carpenter v. Winn, 39 Colo. App. 238, 566 P.2d 370, 371 (1977); Lindsay Realty Co. v. Bellina, 320 So.2d 572, 574 (La. App. 1975); Baldwin v. Corcoran, 320 Mo. 813, 7 S.W.2d 967, 968 (1928); Goetz v. Hubbell, 66 N.D. 491, 502, 266 N.W. 836, 840 (1936); Peryer v. Pennock, 95 Vt. 313, 315, 115 A. 105, 105 (1921); Wilson v. Holyfield, 227 Va. 184, 188, 313 S.E.2d 396, 398 (1984); Annotation, Right of Purchaser Under Land Contract to Anticipate Time of Payment Fixed by Contract, 17 A.L.R. 866, 866 (1922). Alexander, Mortgage Prepayment: The Trial of Common Sense, 72 Cornell L.Rev. 288 (1987) (Alexander), dates the origin of the rule to the early nineteenth century.
The primary question presented is whether, considering Jones' testimony with the other evidence, a case was made for the specific performance of the February 1959 agreement under which Jones was given an option to purchase a 40% interest in the Rogers Park property. "There are two propositions that are fundamental in the law of specific performance. The one is that the court will not make a contract for the parties, and that if it undertakes to enforce their own contract, it will require the performance of neither more nor less than that which the parties themselves have agreed to do. Baldwin v. Corcoran, 320 Mo. 813, 7 S.W.2d 967; Rayburn v. Atkinson [Mo., 206 S.W.2d 512], supra. The other is that the party who seeks relief must show his performance or offer of performance of every essential obligation resting upon him before the other party may be compelled to perform.
It is true, as stated in Drake v. Hicks, Mo.Sup., 249 S.W.2d 358, 360, that there are "two propositions that are fundamental in the law of specific performance. The one is that the court will not make a contract for the parties, and that if it undertakes to enforce their own contract, it will require the performance of neither more nor less than that which the parties themselves have agreed to do. Baldwin v. Corcoran, 320 Mo. 813, 7 S.W.2d 967; Rayburn v. Atkinson, supra [206 S.W.2d 512]. The other is that the party who seeks relief must show his performance or offer of performance of every essential obligation resting upon him before the other party may be compelled to perform. Parkhurst v. Lebanon Publishing Co., 356 Mo. 934, 204 S.W.2d 241; Long v. Rogers, Mo.App., 185 S.W.2d 863.
The instant record does not justify a decree vesting title in the vendee while giving the vendor only a lien upon the premises for the purchase price and staying execution thereon for thirty days. Courts of equity do not make contracts for the parties, nor enforce by specific performance a contract which is indefinite, uncertain, or incomplete in any of its essential terms. Webb v. Toms, 86 Mo. 591; Baldwin v. Corcoran, 320 Mo. 813, 7 S.W.2d 967, 968. We are also of opinion plaintiffs failed to meet their burden of establishing the pleaded contract by clear, cogent, unequivocal and convincing testimony.
A court of equity will not make a contract and then decree its performance. Rayburn v. Atkinson, Mo.Sup., 206 S.W.2d 512; Baldwin v. Corcoran, 320 Mo. 813, 7 S.W.2d 967. So if the clause "d" were considered as if it were intended to be, in itself, a completed contract of purchase and sale, it was incomplete, indefinite and uncertain, and consequently unenforceable. But, as we have said, the quoted clause of the lease does not even purport to be a contract of purchase and sale of the property, although it clearly contemplated that defendants Horn might decide to sell the property.
, (5) enforcement of the option is barred by the Statute of Frauds, and (6) the contract sought to be enforced violates the rule against perpetuities. Kershner v. Hurlburt, 277 S.W.2d 619; Restatement of the Law of Property, secs. 406-411; Cummins v. Dixon, 265 S.W.2d 386; Farrington v. Hays, 353 Mo. 194, 182 S.W.2d 186; Petty v. Griffith, 165 S.W.2d 412; Triplett v. Triplett, 332 Mo. 870, 60 S.W.2d 13; Elsea v. Smith, 273 Mo. 396, 202 S.W. 1071; McDowell v. Brown, 21 Mo. 57; Clark v. Ferguson, 346 Mo. 933, 144 S.W.2d 116; Restatement of Law of Property, Sec. 412 (e); Swain v. Maxwell, 196 S.W.2d 780; Kreamer v. Shelley, 214 S.W.2d 525, 358 Mo. 364; Shelley v. Kreamer, 334 U.S. 1, 92 L.Ed. 1163; Gardner v. Maffitt, 335 Mo. 959, 74 S.W.2d 604; Van Densen v. Ruth, 343 Mo. 1096, 125 S.W.2d 1; Matthews Real Estate Co. v. National Printing Co., 330 Mo. 191, 48 S.W.2d 911; Mo. Providence Educational Inst. v. Schlecht, 322 Mo. 621, 15 S.W.2d 770; Terry v. Michalak, 319 Mo. 290, 3 S.W.2d 701; Baldwin v. Corcoran, 320 Mo. 813, 7 S.W.2d 967; Loewenberg v. DeVoigne, 145 Mo. App. 710, 123 S.W. 99; Oliver v. Johnson, 238 Mo. 359, 142 S.W. 274; Walker v. Bohannon, 243 Mo. 119, 147 S.W. 1024; McCall v. Atchley, 256 Mo. 39, 164 S.W. 593; Chapman v. Breeze, 355 Mo. 873, 198 S.W.2d 717; Bolin v. Tyrol Inv. Co., 273 Mo. 257, 200 S.W. 1059; Amos-James Grocery Co. v. Canvers Exchange, Mo. App., 250 S.W.2d 171; PRT Inv. Corp. v. Ranft, 363 Mo. 522, 252 S.W.2d 315; Sec. 432.010 RSMo 1949; Casner v. Heaton, Mo. App., 237 S.W. 1042; Greenleaf v. Greenleaf, 332 Mo. 402, 58 S.W.2d 448; St. Louis Union Trust Co. v. Kelley, 355 Mo. 924, 199 S.W.2d 344. (3) Failure and inability of appellants to perform in strict compliance with the terms of the deed and contract constitutes a failure to create a contract which can be specifically enforced. Lux v. Lewis, 213 S.W.2d 315. (4) Recognition of the invalid restraint on alienation by respondent does not make it valid.
Appellants remind us that "There are two propositions that are fundamental in the law of specific performance. The one is that the court will not make a contract for the parties, and that if it undertakes to enforce their own contract, it will require the performance of neither more nor less than that which the parties themselves have agreed to do. Baldwin v. Corcoran, 320 Mo. 813, 7 S.W.2d 967; Rayburn v. Atkinson [Mo., 206 S.W.2d 512]. The other is that the party who seeks relief must show his performance or offer of performance of every essential obligation resting upon him before the other party may be compelled to perform. Parkhurst v. Lebanon Publishing Co., 356 Mo. 934, 204 S.W.2d 241; Long v. Rogers, Mo. App., 185 S.W.2d 863.
A court cannot make a contract for the parties and then decree its performance. Rayburn v. Atkinson, Mo. Sup., 206 S.W.2d 512; Baldwin v. Corcoran, 320 Mo. 813, 7 S.W.2d 967; Terry v. Michalak, 319 Mo. 290, 3 S.W.2d 701; Huff v. Shepard, 58 Mo. 242; Blake v. Shower, Mo. App., 207 S.W.2d 775; Place v. Parker, Mo. App., 180 S.W.2d 538; Creston Apartments Corp. v. Philip Gertler Electrical Contracting Co., 229 A.D. 450, 242 N.Y.S. 396; Honeyman v. Marryatt, 6 H.L. Cases 112, 10 Reprint 1236; 58 C.J., Specific Performance, ยงยง 95-96, pp. 929-933. In January 1950, one Jack Tzinberg, assignor of plaintiff, entered into negotiations for the purchase of the property involved herein.