The purchaser was unwilling to go ahead with the contract unless the damage was repaired; the contract therefore became null and void and there is nothing upon which to base an action for specific performance. Keller v. Reich, 646 S.W.2d 141, 143 (Mo.Ct.App. 1983). Furthermore, we note that specific performance will not be decreed where it would be oppressive, unfair, inequitable or would work an unreasonable and disproportionate hardship on the defendant.
[4–7] To obtain the equitable remedy of specific performance, a valid contract must exist between the parties to the action. Keller v. Reich, 646 S.W.2d 141, 143 (Mo. App. S.D. 1983). The essential terms of an agreement to convey real property are the parties, the subject matter, the promises by both sides, the price, and consideration.
If a condition has made a provision null and void, there is nothing for the court to act upon, and the court will not make a contract for the parties. Keller v. Reich, 646 S.W.2d 141, 143 (Mo.App. 1983). The initial parties did not specifically address how prepayment of the note would affect the purchase option provision of the contract.
None of the language suggests the purchaser may reserve his option to waive until the seller has acted and thus, we find appellant's contention to be without merit. A similar situation was addressed in Keller v. Reich, 646 S.W.2d 141 (Mo.App. 1983) in which a purchaser attempted to enforce a contract upon the cure of a defect three years after the scheduled closing. The court found the contract to be null and void pursuant to its terms because the purchaser had failed to waive the defect within sixty days, the time specified in the contract.
The remedy of specific performance assumes the existence of a valid contract between the parties to the action. Keller v. Reich, 646 S.W.2d 141, 143 (Mo.App. 1983). "As a general rule, rescission of a contract does not merely terminate it, but abrogates it in toto."
The filing of the lis pendens constituted a cloud on title. Keller v. Reich, 646 S.W.2d 141, 142 (Mo.App. 1983). Plaintiff was damaged and the cause of action accrued when the lis pendens was filed and the statute began to run.
Adams thus refused to comply with the contract provision. As there was no valid contract between the parties, a court cannot grant the equitable remedy of specific performance, Keller v. Reich, 646 S.W.2d 141, 143 (Mo.App. 1983); McKenna v. McKenna, 607 S.W.2d 464, 467 (Mo.App. 1980), and the trial court's judgment was supported by substantial evidence. We also affirm the denial of plaintiff Red Carpet's petition for its sales commission.