Specific performance is the common equitable remedy for the enforcement of contracts for the sale of real estate. While in other classes of contracts the remedy of specific performance is based upon the inadequacy of the legal remedy and requires a showing judicial and not an arbitrary one, and increase in value standing alone is not sufficient to defeat the remedy by specific performance of the contract to convey land. Bailer v. Spivack, 213 Mich. 436.

Kerwin Machine Co. v. Baker, 199 Mich. 122. It is not a matter of course to decree specific performance of contracts, for it requires a sound discretion in view of all the circumstances, and this discretion must not be arbitrary and capricious, but must be regulated upon grounds that will make It judicial. Friend v. Smith, 191 Mich. 99.

The jurisdiction of a court of equity to decree the specific performance of contracts is not a matter of right, but is within the sound discretion of the court under the circumstances of each case; and specific performance of a land contract, made by a husband while he held an option on the land, was denied where the wife was not a party to such contract. Solomon v. Shewitz, 185 Mich. 620.

Remedy by specific performance is not a remedy of right, but rests in the sound discretion of the court and plaintiff's case must be clear before that discretion is moved. Ickler v. Muellen, 196 Mich. 616.

The granting of relief by decreeing specific performance of a contract is not a remedy of right, but rests, and should rest, in sound judicial discretion. Nowicki v. Ka-pelczak, 195 Mich. 678.

In McMurtrie v. Bennette, Har. Ch. (Mich.) 124, it was held that It is not a matter of course to decree specific performance of contracts. It requires a sound discretion, upon a view of all the circumstances; and this discretion must not be arbitrary and capricious but must be regulated upon grounds that will make it judicial. Here the contract appears to be certain and definite, and has been performed by complainants. Friend v. Smith, 191 Mich. 105.

For an extended discussion of the discretionary powers of the court in actions for specific performance see Offcutt v. Offcutt, 12 L. R. A. U. S. 232, 67 Atl. 138; Spengler v. Sonnenborg, 88 Ohio St. 192, 52 L. R. A., N. S. 510.

2. Pomeroy Eq. Jur. Sec. 2184.

that the legal remedy is inadequate where land or any estate therein is the subject matter of the agreement, the inadequacy of the legal remedy is well settled and the equitable jurisdiction is firmly established.3

In order to maintain an action for the specific performance of a land contract, such contract must possess the following requisites:

(a) It must be valid and legal and for a lawful consideration. If illegal or against public policy it will not be enforced.4

(b) It must be certain in its terms and conditions; one that is vague and uncertain in its terms cannot be enforced.5

3. Pomeroy's Equity Jurisprudence, Sec. 1400, 2nd Ed.

4. Where the contract is made on Sunday even though dated some other day, the contract is unenforceable. Silver v. Shulman, 213 Mich. 211.

If the agreement is made on Sunday, it cannot be ratified or en forced. Berston v. Gilbert, 180 Mich. 638; Acme Electrical Co. v. Van Derbeck, 127 Mich. 341 (89 Am. St. 176); Aspanwell v. Van Derbeck, 127 Mich. 341; McClurken v. Decrick, 33 111. 349; Anderson v. Carkins, 135 U. S. 4831; Carley v. Gitchell, 105 Mich. 38.

5. In order that a court of equity shall exercise its power to decree a specific execution where there has been a part performance, the contract itself must be clear, certain, and unambiguous in its terms, and must either be admitted by the pleadings, or proved with a reasonable degree of certainty to the satisfaction of the court. If, therefore, upon all the evidence given by both parties, the court is left in doubt as to the entire contract or even as to any of its material terms, it will not grant the remedy although a partial performance of something has been sufficiently proved. Louisa A. Green v. Josiah W. Begole, 70 Mich. 602.

"Where the consideration of a contract for the sale of pine land consisted not only of a money payment but of a joint arrangement between the parties for lumbering the land, its specific performance could not be enforced in the absence of any agreement or usage as to the time to be allowed for the lumbering; and the contract is not severable, no portion of it could be specifically enforced.

Courts cannot perfect or enforce contracts from which essential details are omitted." Samuel G. M. Gates et al. v. Henry Gamble, 53 Mich. 181.

"Contracts that are so vague in their terms that no one but the parties can say how great an expenditure they contemplate, cannot be specifically enforced by the courts, but must rest on the honor or good faith of the parties."

"A bill for specific performance will not lie and has nothing to lie on, where a son who had orally agreed to support his parents in consideration of his being entitled to a conveyance from them of what-

(c) It must not be within the statute of frauds unless partly performed.6 ever estate he might acquire out of the farm profits beyond what they owned at the time, had all such property as he purchased from time to time, and so had under this control, conveyed to his mother, who would not reconvey to him when he asked her to." Bumpus v. Bumpus, 53 Mich. 347.

The following quotation from Shodman v. Handy, 102, 382, 46 S. E. 380, is a correct statement of the essential elements required of a contract before the courts will specifically enforce it:

"These elements, conditions, and incidents as collected from the cases, are the following: The contract must be concluded, certain, unambiguous, mutual and upon a valuable consideration; it must be perfectly fair in all its parts; free from any misrepresentation or misapprehension, fraud or mistake, or hard bargain; and its performance not oppressive upon the defendant and finally it must be capable of specific execution through a decree of the court."

Uncertainty of Contract Barring Enforcement.-Where there was no provision in the contract whereby plaintiff agreed to purchase, specific performance was refused for lack of mutuality. Tattan v. Bry ant, 198 Mich. 515.

Where the agreement does not contain the terms or time of performance not sufficient to entitle plaintiff to specific performance as same does not meet the requirements of the statute of frauds. Ro-senbaum v. Tysyka, 192 Mich. 457.

Where the agreement does not contain time of performance, same Is too uncertain, specific performance denied. Nichols v. Burcham, 177 Mich. 601.

A contract for an exchange of merchandise for other property by the terms of which the undamaged goods are to be inventoried and taken at cost prices, and the damaged goods at "prices agreed upon" is uncertain as to the price to be paid for the damaged goods and cannot be enforced. Dayton v. Stone, 111 Mich. 196.

Where the agreement refers to another agreement without specifying the terms of such agreement, it is too uncertain to permit specific performance. Webster v. Brown, 57 Mich. 328.

Where the receipt specified the purchase price but failed to specify the times or terms of payment, was held to be unsufficient to permit specific performance on the ground that it did not comply with the statute of frauds. Maynard v. Brown, 41 Mich. 298.

6. Contract must contain essentials required by statute of frauds, except in those cases where the courts will enforce partly performed verbal contract.

For a full discussion of the relief granted in this class of cases, see Chapter II (Statute Of Frauds Sufficiency Of The Preliminary Agreement. Oral Contracts Partly Performed. Miscellaneous), Sec. 21, Ante.

If the description is insufficient, the courts will not specifically enforce the contract. Ebert v. Cul-len, 165 Mich. 75; Wardell v. Williams, 62 Mich. 50; Welch v. Whelp-ley, 62 Mich. 16; Maynard v. Brown, 41 Mich. 298; Peckham v. Balch, 49 Mich. 179

(d) It must be free from all taint of fraud or deceit.7

(e) It must, as a general rule, be mutual, both parties equally bound, although there are important exceptions to this rule.8

(f) It must be fair and just and free from fraud or surprise and such that it will not be inequitable to enforce.9

(g) It must be of such a character that the performance thereof can be compelled by the court. Where from the nature of the case the court will be unable to compel specific performance, it will not attempt to do so.10

If the contract for the sale of real estate meets the foregoing conditions the courts will specifically enforce it as a matter of course. For case illustrating the rule, see other sections of this work.11 See Sec. 97-113-114 Post.