¶1I respectfully dissent.
¶2This is a contract suit. The plaintiff Paul Hamon sued Dr. William M. Allen for specific performance of a written contract for the sale and purchase of a home. The trial was to a jury; however, the court rendered judgment denying plaintiff Ham-on’s motion for judgment of specific performance and granted defendant Allen’s motion for judgment, without submitting the case to the jury.
¶3The remedy of specific performance is purely equitable. The purpose of granting specific performance should be primarily for the protection of the plaintiff but the equities of the defendant should also be respected since the supreme object is the attainment of complete justice between the parties. 52 Tex.Jur.2d, Specific Performance, §§ 2 and 147.
¶4The question whether or not a plaintiff will be granted specific performance ordinarily rests in the sound judicial discretion of the court based on the circumstances of the case; but where there is no misunderstanding on the part of the vendee and no misrepresentation on the part of the vendor, specific performance may be granted as a matter of right. The defendant should not be permitted to rely on his own default as a defense. 81 C.J.S. Specific Performance § 63, p. 564.
¶5The purpose therefore of specific performance is to compel the defendant to do the very thing his duty and the plaintiff’s primary rights require of him. 52 Tex.Jur. 2d, Specific Performance, § 7.
¶6The salient facts leading up to the execution of the contract in question are unquestioned. The terms of the agreement *394are not disputed by either party. There is no contention that there was evidence of fraud or misrepresentation as a basis for defendant’s refusal to perform the contract as he had agreed. The plaintiff was ready and willing to perform throughout. The suit for specific performance was based on the contract. Therefore, details of the contract and of the facts leading up to the repudiation by defendant are important to the decision of this case, as they show the lack of any equitable or legal basis justifying the defendant’s refusal to honor his commitment. In determining whether specific performance should be granted the court will, in a large measure, judge the contract as of the time of its execution. 52 Tex.Jur.2d, Specific Performance, § 20.
¶7The defendant was desirous of purchasing a new home on Ocean Drive. He secured the services of a realtor to aid him in this endeavor. The plaintiff was the owner of such a home but had never offered his home for sale. Defendant’s realtor contacted plaintiff in an effort to purchase his property for defendant. After a series of negotiations between the parties, an agreement for the purchase and sale of plaintiff’s property was reached which was reduced to writing and executed by both parties. This agreement was on a printed form furnished by the title company. It was filled out in all details. In addition to providing for title insurance, realtor’s commission and closing instructions, the contract contained the usual and customary provisions for the sale and purchase of real estate. Special provisions not covered by the contract were typed in.
¶8The contract described the property by lot, block, subdivision and the common street address. The property to be conveyed included the land and all improvements, as well as certain specified items of personal property. The purchase price was $63,500.00, made up by payment of $9,200.00 cash, the securing of a 25-year 7% loan of $48,300.00 and the balance of $6,000.00 to be carried by the plaintiff at 7% interest until defendant could sell his present home.
¶9The contract stated that the defendant was to assume the payment of any street, sidewalk and paving assessments. It provided for the plaintiff to paint the wood trim on the house at plaintiff’s expense. The contract specified that the property was to be termite inspected; and a warranty be issued by a reputable termite company. If the inspection revealed any damage to the house it was to be repaired at plaintiff’s expense. The contract provided further that $1,000.00 earnest money should be deposited by defendant with the title company and that if the contract was not placed in the hands of the title company by the 19th day of December, 1968, the contract would be null and void.
¶10The contract was executed on the 18th day of December, 1968 and was delivered and received by the title company on the 19th. The $1,000.00 escrow payment was paid by the defendant and received by the title company. The contract stated:
“ … Should the Purchaser fail to consummate this contract as herein specified for any reason, (except (1) title defects, (2) or in the event that Purchaser is unable to perform by reason of his inability to obtain the above named financing, in either event the said earnest money will be refunded in full to the Purchaser), otherwise, Seller shall be entitled to receive said cash deposit as liquidated damages for the breach of this contract, or he may at- his option enforce specific performance hereof. … " (emphasis supplied)
¶11Prior to the final execution of the above contract the defendant and his wife made preparations to purchase plaintiff’s property. On December 5 they made application with the First Savings Association of Corpus Christi for a conventional mortgage loan in the amount of $48,300.00 for a term of twenty-five years with interest at the rate of 7%. As a part of their applica*395tion, the defendant and his wife described the plaintiff’s property as the property that they proposed to purchase, and specified the exact sales price. The loan application contained the defendant’s financial statement and his agreement to pay the charges incurred by the Association in making the loan. The record does not show that the plaintiff had any knowledge that the defendant and his wife had made the joint application for such loan. However, when the loan was approved, the note, deed of trust and check in the amount of $48,300.00 was delivered to the title company with instructions directing the title company to secure the joint signature of the defendant and his wife, on the note and deed of trust. The title company then drew up a deed from plaintiff and his wife as grantors to the defendant and his wife as grantees. They prepared the deed of trust, note and closing statement for the defendant and his wife to execute. The plaintiff and his wife went to the title company first. They duly executed the deed and their separate acknowledgments were taken by the title company’s notary.
¶12The title company then notified the defendant that all of the papers had been prepared and that the transaction was ready to be closed. On Thursday, January 16, 1969, the defendant went to the title company and inspected the papers, including the warranty deed executed by plaintiff and his wife. Witnesses from the title company testified that the defendant made a number of inquiries relative to closing costs, etc., but made no objections to the substance or form of the transaction. The record further shows that defendant had benefit of counsel and even discussed the transaction with his attorney on Thursday or Friday before he executed all the papers on Friday, January 17. In addition to signing the 25-year, 7% promissory note, he executed and acknowledged before a notary, the deed of trust. He signed and approved the title company’s closing statement and ratified its proposed disbursement of funds. Finally, the defendant gave the title company his personal check for $15,335.88 with the written notation made on the check: “Bal. of purchase price & closing costs in connection with purchase of 3628 Ocean Drive.” He then instructed the title company to call his wife and tell her to come in and sign the papers.
¶13The defendant admitted at the trial, that at this point he considered he had made a deal with the plaintiff. That his purpose for executing the papers was to close the real estate transaction. However, the facts as later developed, are, that later that same day (Friday, January 17) the defendant had a change in heart because his wife was worried that if something happened to him she would be unable to carry out the mortgage. Whereupon, the defendant stopped payment on the check and repudiated the contract.
¶14The defendant raises ten to fifteen separate contentions in the alternative as his reason for not going through with the contract in question. Two of these contentions are the basis given by the majority of our Court for affirming the trial court’s judgment. The defendant has from the outset contended as his basic defense, that the contract was too indefinite and uncertain to authorize judgment of specific performance; citing Bryant v. Clark, 163 Tex. 596, 358 S.W.2d 614 (Tex.Sup.1962). As a corollary to this argument, the defendant plead as his primary contention that, when he received the contract in question he himself modified the contract by inserting “7%”, as the type of loan to be obtained and this was never accepted by the plaintiff. His pleadings stated:
“At the time that ‘original typed’ contract was modified by Defendant, it had already been executed by Plaintiff. The modification by Defendant of the terms of the proposed contract thus offered by Plaintiff, operated as a rejection of such contract and as a counter offer. Such counter offer was not accepted by Plaintiff and has long since expired.”
¶15*396Defendant argues that by the insertion of “7%” after plaintiff had signed the contract constituted, as a matter of law, a rejection of plaintiff’s offer and the instrument, after the change, became a new offer by defendant which was never accepted. The defendant argues that the 7% provision is too indefinite, uncertain and vague to be enforceable.
¶16The plaintiff stated during oral argument, without contradiction, that the trial court based its judgment upon the reasoning of the Supreme Court case of Bryant v. Clark, supra. The defendant devotes a greater portion of his brief to this proposition. However, the Bryant case is not applicable to the fact situation before us. The subject contract was definite and certain and called for a sales price of $63,-500.00. It is true that the contract was conditioned upon the defendant obtaining a 25-year 7% loan in the amount of $48,-300.00. However, this was consummated; the terms of which were worked out by defendant and the lending agency. All of the particulars were finally reduced to writing and signed and accepted by defendant. The defendant and his wife made the application for the loan. It was approved, and accepted by the defendant at the time he signed the note and deed of trust. The defendant admitted that the reason he inserted the 7% in the purchase contract was because “this was what we had agreed upon.” It did not amount to a rejection of plaintiff’s offer.
¶17The defendant contends that he is excused from carrying out the terms of the contract because the plaintiff failed to tender a proper deed at the time of closing. He contends that the deed now has to be tested as to whether or not it was a good and proper deed as specified by the contract between the parties. He contends that since the plaintiff did not tender a proper deed or change the deed of trust and note so as to eliminate the defendant’s wife, he is excused. He contends that even if plaintiff was able to tender a proper form of deed, he did not prove that plaintiff’s wife would sign a second time.
¶18The testimony was that just prior to January 17, the defendant’s wife wanted to execute the deed as prepared on Thursday but had a change of heart on Friday. The warranty deed as tendered by the plaintiff was satisfactory with Dr. Allen in every respect on the date that it was tendered to him and he signed all the papers. It is undisputed that the reason for the wife’s name being included in the instruments was because of the lending company’s instructions to the title company. This was based upon the fact that the defendant and his wife made a joint application for loan. The loan officer of the lending agency testified that he assumed that the defendant and his wife wanted the property in their names. This was a logical assumption since the defendant made the joint application for the loan. The loan officer testified that he would have given the same loan to Dr. Allen without Mrs. Allen being included; that as far as they were concerned her signature was not necessary. At no time did the defendant ever request that the deed be made to him individually or that Mrs. Allen’s name be eliminated. At no time did he agree to honor his commitment after he repudiated, the agreement. Had the papers included only his name and not his wife’s on the date of closing, it is reasonable to assume that the entire transaction would have been consummated on January 17, as the defendant had executed everything at that time. Had it not been for the defendant’s own action in causing (indirectly) the papers to be drawn in such a way as to include his wife’s name, this suit in all probability would not have been necessary. The defendant offers no justification for his refusal to perform as agreed.
¶19The general rule is that a tender of performance must be in substantial compliance with the terms of the contract. However, immaterial variance between a deed offered in performance, and the terms of the contract as to matters in respect of which a court of equity can protect the defendant in its decree, will not preclude the award of specific performance. 52 *397Tex.Jur.2d, Specific Performance, § 52, p. 589. Even so, readiness and ability to perform may be sufficient in some circumstances without a formal tender or offer of performance, where the party has refused to perform, has repudiated the contract, or has failed to demand performance. 52 Tex.Jur.2d, Specific Performance. § 52, p. 588.
¶20This is a suit on the executed contract after the defendant repudiated it. It was therefore not necessary for the plaintiff to tender a proper deed to the property before suit, where the defendant has refused to accept in any event, or has openly repudiated the contract, or has declared his intention not to perform. Under these circumstances it is sufficient if the plaintiff is ready and willing to perform and offers to do so. 52 Tex.Jur.2d, § 61, p. 600 and see § 120.
¶21The evidence is undisputed that the plaintiff had performed all of the terms of the contract and was ready, willing and able to specifically perform at the time of trial. The plaintiff testified that he had painted the trim on the house at a cost of $250.00. He testified that he had his property inspected by a reputable termite company. He received a letter from the termite company that the property was approved. The contract provided for possession of the property on February 1, 1969, and in this respect plaintiff testified that he had made arrangements for the renting of another home and had already moved some of his property and tools. He testified that he was ready to deliver possession to the defendant as agreed.
¶22The defendant testified that all of the instruments necessary to close the transaction were executed by him before he stopped payment on his check. He admitted that had it not been for his wife’s objection, he would have gone through with the transaction. The plaintiff is not required to guess what is wrong with the form of a deed where the defendant misled the plaintiff in effect, and did not state his objection or offer to perform.
¶23Specific performance may be ordered even though there has not been a strict legal compliance with the terms of the contract by the plaintiff, if he has substantially performed and the nonperformance does not go to the essence of the contract. 52 Tex.Jur.2d, Specific Performance, § 60, p. 598. Even where an error in a written contract is a result of the mutual mistake of the parties or of a mistake on the part of the plaintiff or fraud on the part of the defendant, the court may in the same suit perform the contract and decree specific performance of it as reformed. 52 Tex.Jur.2d, Specific Performance, § 156, p. 701. A contract is sufficiently certain to be specifically enforced if it can be made certain by reformation. If this be true as to a contract, it follows that a court of equity can do the same to the tendered deed.
¶24Where as here, a contract for sale of land is in writing, signed by both parties, is certain and fair, is for an adequate consideration, and is capable of being performed without undue hardship, or where a refusal of such relief is not justified, it is as much a matter of course for a court of equity to decree specific performance as it is for a court of law to give damages for a breach of contract. 81 C.J.S. Specific Performance § 63, p. 559.
¶25There was no evidence that the plaintiff was unable to perform the contract as written. There was no competent evidence that plaintiff waived or abandoned his suit for specific performance as contended. The prosecution of the suit to trial and the appeal refutes this contention. There were no pleadings or offer by defendant to amend his pleading at the close of the evidence to raise this defense. At most it would only be a jury issue, as the evidence was not conclusive.
¶26The defendant has made no cross assignments of error. Therefore, the judgment of the trial court should be reversed and rendered for plaintiff.