# Brown v. Bivings

> Supreme Court of Oklahoma · November 3, 1954 · 277 P.2d 671

URL: https://www.frixlaw.com/law-library/cases/9625368

## Case

- **Full name:** Robert BROWN, Plaintiff in Error, v. R. L. BIVINGS, Defendant in Error
- **Court:** Supreme Court of Oklahoma
- **Decided:** November 3, 1954
- **Citations:** 277 P.2d 671; 1954 OK 301; 1954 Okla. LEXIS 716
- **Precedential status:** Published
- **Opinion:** Dissent by Williams
- **Judges:** Johnson, Welch, Corn, Davison, Arnold, O'Neal, Halley, Williams, Blackbird
- **Cited by:** 10 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9625368

## Opinion text

WILLIAMS, Justice
(dissenting).
I am unable to agree with the majority opinion.- As I understand it the opinion holds that there was no contract between the parties hereto but merely vague and indefinite oral negotiations concerning certain properties which were to be purchased in the future. In my thinking, there is no basis whatsoever in the record before us for such a holding. The testimony of the defendant himself corroborates the testimony of plaintiff in regard to the making of an agreement, including the time and place at which such agreement was made. The only conflict between the testimony of the two parties was as to the terms of the agreement made. Plaintiff contended that the agreement was one of partnership or joint venture, and his evidence supported such contention. Defendant, on the other hand, contended that the agreement was a mere contract of employment and his evidence supported his contention. The case, therefore simply presents a question of fact which the trial court resolved in favor of plaintiff on the basis of the conflicting evidence presented. As the majority is over *676 turning the judgment of the trial court, it would definitely seem that its opinion should demonstrate wherein that judgment is clearly against the weight of the evidence. ■ Until' that can be and is done, I believe that it is neither the duty nor the right of this court to substitute its judgment for that of the trial court on a purely factual question.
The mere fact that the evidence is in conflict as to what the actual terms of the agreement were does not render the agreement so vague and indefinite as to be unenforceable. The statute relied upon by defendant and the majority opinion, 15 O.S. 1951 § 104, requires that a contract be so vaguely expressed as to be wholly unascer-tainable before it will be rendered void for uncertainty. Can the purpose of the agreement in question be said to be wholly un-ascertainable ? I think not. Plaintiff performed his part of the contract for over two years without complaint as to the certainty .of the contract, as did defendant. I am unable to understand how a contract could be carried out for over two years without complaint by either party thereto if it were so vague as to be wholly unascer-tainable. Furthermore, the trial court apparently had no difficulty ascertaining the terms of the contract. The trial court made specific findings of fact as to exactly what the terms of the agreement were, and defendant does not even attempt to argue that the trial court’s findings are not supported by the evidence, but rather argues that the evidence merely tended to prove an agreement to enter into a written contract, (and argues other points not material here). If the trial court was able to ascertain the terms of the agreement, it could not logically be said that such terms were wholly unascertainable.
The law looks with disfavor upon the invalidating of agreements on account of uncertainty. Webb v. Moran, 186 Okl. 140 , 96 P.2d 308 ; Oklahoma Portland Cement Co. v. Pollock, 181 Okl. 266 , 73 P.2d 427 . And a contract is not void for uncertainty even though it does not enter into all the details with respect to its subject matter, if, according to its terms, it is sufficiently definite so that it can be ascertained with a reasonable degree of certainty what the parties intend to agree to. Harlow Publishing Co. v. Patrick, 181 Okl. 83 , 72 P.2d 511 ; Webb v. Moran, supra. The agreement in question is sufficiently definite so that it can be ascertained with a reasonable degree of certainty whát the parties intended to agree to, and should therefore, be upheld and not held void for uncertainty. Furthermore, defendant is not even entitled to defend the action upon the ground that the agreement is vague and uncertain since he has accepted the services performed by plaintiff in good faith for over two years. Livingston v. Blair, 104 Okl. 238 , 231 P. 82 .
In my view, in that it fails to demonstrate how the judgment of the trial court is clearly against the weight of the evidence, the majority opinion completely usurps the function of the trial court as the trier of facts and I am unable to concur therein. I therefore respectfully dissent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9625368. Public record. Not legal advice.