Trust I cites four Oregon cases which it regards as supporting that proposition. Two of them, Percy v. Miller et al., 197 Or. 230, 251 P.2d 463 (1952), and Wurfel v. Bockler et al., 106 Or. 579, 210 P. 213 (1922), hold that the sellers seeking specific performance were not entitled to the remedy, because they could not perform or had not performed the specific obligations pertaining to title that their contracts expressly required. Conversely, in this case, the possession and tender of title that Trust I asserts are obligatory and that plaintiff cannot perform because of the Kreklau contract are expressly made subject to that contract by the contract between plaintiff and Trust I.Smith v. Martin, 94 Or. 132, 185 P. 236 (1919), the third case on which Trust I relies, seems to us to be marginally related, if at all, to the proposition Trust I advances. The court stated there:
Oregon courts will generally award specific performance for breach of a land sale contract when the party seeking specific performance has a valid, legally enforceable contract and is "ready, able, and willing to perform his obligations under the contract." Percy v. Miller, 197 Or. 230, 251 P.2d 463, 468 (1952). Though Defendants were technically in breach of the time-essence provision, "[l]iteral and exact performance by a [party] is not always necessary as a condition to securing specific performance of a contract" under Oregon law.
A failure to do this may justify court action on the part of the plaintiff. Wilson v. Calvert, D.C.Ariz. 1951, 96 F. Supp. 597; Percy v. Miller, 1952, 197 Or. 230, 251 P.2d 463. Though the appellate courts seem to have considered the question of rescission more frequently than the question of breach, the authorities, like the Idaho court in Huggins v. Green Top Dairy Farms, supra, frequently pronounce a general rule favoring action for breach in situations similar to this case.
Defendants contend, however, that plaintiffs cannot recover because they were still required to prove that they were "ready, able and willing" to perform their obligations under the agreement, including the payment of $2,500 on closing of the transaction, and that plaintiffs failed to offer any substantial evidence to prove those necessary facts. In Percy v. Miller et al, 197 Or. 230, 239-40, 251 P.2d 463 (1952), we held that: "It is a general rule of equitable jurisprudence that a plaintiff coming into equity for specific performance must show not only that he has a valid, legally enforceable contract, but also that he has complied with its terms by performing or offering to perform on his part the acts which formed the consideration of the undertaking on the part of the defendant, or that he is ready, able, and willing to perform his obligations under the contract, in their entirety, * * *."
The trial court's decree for the defendants, as shown by the memorandum opinion, was founded on its determination that the facts showed the plaintiff was not entitled to specific performance by reason of his own failure to abide by the terms of the contract, and for the further reason that the same matters were determined in the justice court hearing on forcible entry and detainer, and review thereof by the circuit court, and was res judicata. See also Smith v. Martin, 94 Or. 132, 185 P. 236; Tiggelbeck v. Russell et al., 187 Or. 554, 213 P.2d 156; Percy v. Miller et al., 197 Or. 230, 251 P.2d 463. We agree with the trial court that the plaintiff did not fully and faithfully perform the terms and conditions of the contract and did not show that he was ready, willing and able to perform his part of the contract, or give any sufficient reason for such failure.
We deem that statement a correct portrayal of the governing rule. See also Hawkins v. Doe, 60 Or. 437, 119 P. 754; Public Market Co. v. City of Portland, 160 Or. 155, 83 P.2d 440; Percy v. Miller, 197 Or. 230, 251 P.2d 463; Gorder Son v. Pankonin, 83 Neb. 204, 119 N.W. 449. O'Fallon v. Kennerly, 45 Mo 124, denied specific performance because the purchaser under a unilateral contract had not tendered the money or proved an alleged act of waiver.
"Literal and exact performance by a plaintiff is not always necessary as a condition to securing specific performance of a contract by defendant." Percy v. Miller et al., 197 Or. 230, 251 P.2d 463. Also see, 49 Am Jur, Specific Performance, Sections 41 and 42. From Pomeroy's Equity Jurisprudence, 3d Ed, Section 1297, we quote:
To be entitled to specific performance, a plaintiff must show that he has a valid, legally enforceable contract and that he is ready, willing, and able to perform his obligations under the contract. Gaffi v. Burns, 278 Or 327, 333, 563 P2d 726 (1977); see also Percy v. Miller, et al., 197 Or 230, 239-40, 251 P2d 463, 468 (1952). For purposes of this assignment of error, we assume, without deciding, that plaintiff proved that there was a valid, legally enforceable contract between the parties that was repudiated by defendant.
It argues that there was insufficient evidence that plaintiff satisfied the condition precedent to provide the draft agreement within "approximately" 15 days and that the trial court erroneously allowed the issue to go to the jury because it erroneously concluded that the jury need only find that plaintiff did not materially breach the contract. According to defendant, the trial court "applied the wrong standard" because materiality is not relevant to the issue of whether a condition precedent was satisfied. Compare Hoffman v. Employer's Liability Corp., 146 Or 66, 70, 29 P2d 557 (1934)) (discussing conditions precedent) with Percy v. Miller et al., 197 Or 230, 245, 251 P2d 463 (1953) (discussing constructive conditions, including material breach). The jury, however, found that plaintiff fully satisfied her obligation to timely provide a draft agreement.
Thus, it is well settled that a plaintiff cannot obtain specific performance unless he is able to comply with the terms of the contract on which he relies. Coonrod v. Studebaker, 53 Wash 32, 36-37, 101 P 489, 490-91 (1909); accord Percy v. Miller et al., 197 Or 230, 239-40, 251 P2d 463 (1952) ("[A] plaintiff coming into equity for specific performance must show not only that he has a valid, legally enforceable contract, but also that * * * he is ready, able, and willing to perform his obligations under the contract, in their entirety * * *."); Voin v. Szabo, 139 Or App 590, 593-94, 913 P2d 717 (1996), rev dismissed as improvidently allowed, 325 Or 247 (1997) (same); Specific Performance, 81A CJS 253 § 79 (2004); Specific Performance, 71 Am Jur 2d 81-82 § 77 (2001). Here, although he may be willing, plaintiff is neither ready nor able to grant defendant a security interest in his right to any recovery in the Nelbro litigation.