dissenting. As stated correctly by the majority, an oral settlement agreement requires no more formality, nor greater particularity, than a written instrument to form a binding contract. Thus, the oral statements made by and between Noroski, the insured, and the young lady insurance adjuster, which statements were recorded upon tape, may, when reviewed by a trier of the facts, be determined to constitute a binding contract.
The trial court bifurcated the issue of the affirmative defense of release and conducted a hearing on this matter without a jury, and found that the recorded conversation constituted a valid and enforceable release of all claims arising from the accident. The court of appeals, relying upon McBennett v. Piskur (1965), 3 Ohio St. 2d 8 [32 O.O.2d 5], held that the trial court could properly determine the issue of the existence and validity of an alleged release without the intervention of a jury.
*81Although this case deals with a tape recorded telephone conversation which is alleged to constitute the release, the same basic approach may be taken by the trial court, as did the court in McBennett, i.e., sever the issue of the release from the case in order to determine whether there is sufficient evidence to submit to a jury upon the issues of the existence of any such agreement, any fraud in the inducement of such agreement, and any mistake, mutual or unilateral, which could substantiate avoidance of such release.
Here, the trial court listened to all the evidence adduced on these issues, including the testimony of the appellant, the insurance adjuster representing the insurance company, and the tape recording constituting the alleged release. As to the tape recording offered in evidence here, there is no dispute that the adjuster for the insurance company stated on the tape, which was a recorded telephone conversation of December 31, 1975, that she was recording the conversation of settlement of the appellant’s insurance claim against the company.
Additionally, the tape more specifically sets forth the nature of the discussion, as follows:
“Q. Do you agree that the draft I will be sending you in the total amount of $754.40 is the full and complete settlement for your bodily injuries as well as the property damage resulting from this accident? (Emphasis added.)
“A. Yes.”
At the hearing of this matter before the court, and after listening to a replay of the tape, the appellant was asked:
“Q. Did you hear yourself clearly say ‘yes’ after she asked if that would or if you agreed that that would be a full and complete settlement?”
The appellant, in answer thereto, stated:
“A. Yes, I heard, ‘yes.’ ”
The trial court also had evidence before it that the appellant received the first draft in payment of his damages in October 1975 in the amount of $454.76, and that, thereafter, on December 3, 1975, he submitted additional medical bills to the insurance company in the amount of $119.10. The evidence showed that the taped telephone conversation followed on December 31, 1975, with a resulting second draft in the amount of $299.64 sent to the appellant. The evidence further indicates that the appellant did not contact the company’s adjuster after the December 31st telephone conversation, even though he had incurred the additional expenses now sought to be recovered which evidence as argued by the appellee, would be additionally reasonably supportive of the conclusion that the appellant believed that the agreement of December 31, 1975 constituted a complete release.
It would appear that there was a proper quantum of evidence to show the existence of a contract of release between the parties. The further issue to be determined by the trial court was whether there was sufficient evidence adduced as to any fraud or mistake which might rise to a jury issue. *82The trial court, based upon what was presented to it, determined such question in the negative and found for the appellee. I do not find the conclusion of the trial court to be against the manifest weight of the evidence.
As to the question of mistake in the entering of the release of December 31, 1975, the appellant takes the position that such a release was for the known extent of the injuries and the medical bills and expenses at that time. He states that his injuries turned out to be more serious than he had anticipated, and his resulting costs much greater. However unfortunate the result may appear for the appellant, it still remains a fact that a release had been entered into by the parties, and a later discovery of a mistake of fact by one of the parties will offer no ground for the setting aside of the release.
Accordingly, I would affirm the judgment of the court of appeals.
Locher and Krupansky, JJ., concur in the foregoing dissenting opinion.