Franklin v. Stern

WARREN, P. J.,

dissenting.

The majority affirms the trial court’s grant of specific performance to plaintiffs based on the terms of an August, 1990, agreement with defendants.

*312To obtain specific performance, an agreement must be

“complete and certain ‘in all its parts’; that ‘none must be left to be determined by future negotiations; and this is true without any regard to the comparative importance or unimportance of these several terms.’ ” Phillips v. Johnson, 266 Or 544, 556, 514 P2d 1337 (1973).

Plaintiffs’ evidence conclusively showed that, in August, 1990, the parties had reached agreement on some of the terms of the agreement they seek to enforce. The Sterns admitted in court that they agreed to those terms, as far as they went, but presented evidence that showed that the parties had not reached a final agreement.

Part of the Sterns’ evidence consisted of a letter that plaintiffs sent to the Sterns in September, 1990, one month after the date when plaintiffs contend they had reached a final agreement. In that letter, plaintiffs described the general condition of the park and discussed whether the park would generate enough revenue to cover plaintiffs’ obligation to the Sterns. The letter also discussed the park’s value and plaintiffs’ intent to make the best possible offer on the park. The Sterns also presented evidence, through their own testimony and that of the attorney who represented them in their Oregon business dealings, that they would not agree to sell the park to plaintiffs unless plaintiffs agreed to pay them one-half of the proceeds of any future sale of the park over a certain figure. The Sterns indicated to their counsel that they would need to know the park’s value to finalize that figure.

The September, 1990, letter from plaintiffs to the Sterns, combined with the testimony of Sterns’ attorney, is compelling evidence that the price term had not been agreed upon as of August, 1990. Plaintiffs’ own evidence establishes that they were still negotiating for a price. The parties had not reached a meeting of the minds, and they did not have a specifically enforceable agreement.1

*313Accordingly, I dissent.

In Bixler v. First National Bank, 49 Or App 195, 199 n 4, 619 P2d 895 (1980), we noted that, if a promise is not sufficiently definite to be enforceable, estoppel might permit the party who reasonably relies on that promise to obtain reliance damages. Thus, we implicitly recognized that a person can reasonably and foresee-ably rely on a promise that is not sufficiently definite to be enforced. However, we have never concluded, and I can find no precedent to support the conclusion, that an *313indefinite promise on which a person reasonably, foreseeably and detrimentally relies, is definite enough to specifically enforce. But see Adair Homes, Inc. v. Jarrell, 59 Or App 80, 84, 650 P2d 180 (1982) (method by which missing term could be determined was sufficiently definite to enforce).