I concur with Part I of the majority opinion and with that portion of Part II concerning the meaning of the term "special meeting." I do not agree with the reasoning of the majority concerning the validity of the agreement reached by the parties, but rather, concur in the result for the reasons set forth below.
Initially, it must be noted that the only verbatim transcript provided this court is from the February 8th hearing on several motions, including the School Board's motion for relief from the January 11th order of the court. That transcript contains no sworn testimony but rather the arguments presented on behalf of the parties. More importantly, those hearings were held after the School Board had filed its notice of appeal with this court. Thus, the trial court was without jurisdiction to rule on the motion for relief from judgment. Vavrina v. Greczanik (1974),40 Ohio App.2d 129, 132. For the foregoing two reasons, this court may not consider as evidence any of the statements made to the court at that hearing.
With respect to the validity of the agreement reached between the parties, two questions are presented: (1) Whether the oral agreement reached by the parties on January 2nd was binding, and if not, (2) whether the agreement reduced to written form by the School Board became binding on the parties when ratified by the Union. *Page 124
I. Parties to a contract may be bound by their oral agreements although they contemplate executing a final written agreement containing all of the provisions upon which they agreed. The question of whether the parties intended to be bound prior to the execution of the formal written contract is a question of intent and an issue of fact. Arnold Palmer Golf Co. v. FuquaIndustries, Inc. (C.A. 6, 1976), 541 F.2d 584, 587-588;Banking Trading Corp. v. Floete (C.A. 2, 1958), 257 F.2d 765,769; Hamilton Foundry Machine Co. v. International Molders Foundry Workers Union (C.A. 6, 1951), 193 F.2d 209, 213-214. Various factors should be taken into consideration in determining the parties' intent.3 In some cases, it has been held that an oral agreement will be found not to bind the parties only where there is "* * * clear evidence demonstrating that the parties did not intend to be bound by the terms of an agreement until formalized in a written document and signed by both * * *." Richard A. Berjian, D.O., Inc., v. Ohio Bell Tel.Co. (1978), 54 Ohio St.2d 147, 151. In the instant case there is a dearth of such "clear evidence."
In my opinion, the facts surrounding the formation of the contract in question show an intent on part of the School Board and Union officials to be bound when the agreement was orally agreed to and announced on January 2, 1980.
However, since the Union could not be bound at that time without ratification by its members, it would be inequitable to hold the School Board bound by the oral agreement before ratification by the Union. The agreement as reached orally bound the parties upon ratification by the Union.
II. Following the reaching of the oral agreement, the attorney *Page 125 for the School Board reduced the agreement to writing. The School Board claims that in so doing, the attorney inadvertently omitted an important provision of the contract. The Union, on the other hand, denies that this alleged omitted provision was a part of the agreement reached by the parties.
The Union ratified the agreement as written on January 3, 1980. Subsequently, the School Board refused to adopt the contract without the addition of the allegedly omitted provision.
The School Board's argument before this court that the contract is invalid due to a mutual mistake is initially very persuasive. However, the record contains no testimony, affidavits or other evidence to show that the missing provision was, in fact, agreed to at the negotiations. As an appellate court, we are, of course, bound by the record before us. Thus, there can be no claim by the School Board that there existed any mutual mistake in the adoption of the written agreement. A purely unilateral mistake will not affect the validity of the contract. McDonald v. French (1940), 32 Ohio Law Abs. 356, 359.
Absent a mutual mistake, once the School Board's offer of the written contract was accepted, the School Board could no longer revoke its offer. Wargo Builders v. Cox Plumbing Heating (1971), 26 Ohio App.2d 1. Nor does the fact that the School Board did not sign the contract before offering it to the Union for ratification alleviate the School Board's obligations under the contract. To hold otherwise would be to elevate form over substance.
Even assuming that the omitted provision was part of the agreement reached by the parties at the negotiations, such fact would be insufficient, given the record before us, to reach a different result. In order for a contract to be voidable or modified on the grounds that there existed a mutual mistake in the formation of the contract, it must be proven that the mistake concerned a material matter. Cincinnati v. Fox (1943), 71 Ohio App. 233,240. There is no evidence before us concerning the effect of the allegedly omitted provision on the various parties to this suit. Without such evidence, we cannot determine whether the provision was "material."
For the foregoing reasons, I concur in the conclusion of the majority that the School Board and the Union were bound by the written agreement as prepared by the School Board and ratified by the Union on January 3, 1980.
3 The following factors are often used in determining the intention of the parties:
"`* * * whether the contract is of that class which are usually found to be in writing, whether it is of such a nature as to need a formal writing for its full expression, whether it has few or many details, whether the amount involved is large or small, whether it is a common or unusual contract, whether the negotiations themselves indicate that a written draft is contemplated as the final conclusion of the negotiations. If a written draft is proposed, suggested, or referred to during the negotiations, it is some evidence that the parties intended it to be the final closing of the contract.'
"* * * Whether during the negotiations the parties have fully agreed upon all of the details of the transaction, * * *."Banking Trading Corp. v. Floete, supra, at 769. *Page 126