(concurring):
I concur although I think the case a closer one than the majority opinion suggests. I have in mind the Supreme Court’s recent reminder in Anderson v. City of Bessemer City, — U.S. -, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985), that (1) adoption by the trial judge of findings proffered by a party, while not looked upon with enthusiasm, does not make permissible a standard of review different from the “clearly erroneous” standard set forth in Fed.R.Civ.P. 52(a), id. at-, 105 S.Ct. at 1509, and (2) appellate courts must not exercise de novo review over findings not based on credibility determinations but based instead on documents or objective evidence, contrary to the former Second Circuit rule, id. at-, 105 S.Ct. at 1511. We are nevertheless entitled to declare the facts to be contrary to the findings of a trial court in an appropriate case, given documentary or objective evidence that so contradicts a witness’s story, or a story itself so internally inconsistent or implausible on its face, that no factfinder can reasonably credit it. Id. This case, in my view, just fails to meet that test.
Going with Vanguard, after all, are the following:
1. The confirming telex in the parties’ first deal confirmed that “Vanguard will sell” and “Apex will purchase,” while the critical telex in this, the second, deal said only that “Apex will purchase”;
2. While Apex traders ordinarily propose “deal notes” to record consummated deals, there was none either for this deal (other than a copy of the confirming telex) or the subsequent “extensions” of the date for delivery;
3. Apex did not send a printed standard-form contract as it had done in connection with the first deal;
*4254. Apex did not, contrary to trade custom, ask for a response from or reconfirmation by Vanguard; and
5. There was independent expert testimony that Apex’s telex was merely a “ready, willing and able” offer to purchase, used to help a seller obtain bank financing.
At the same time, Vanguard undoubtedly received the April 7 telex, but stood by and did nothing to suggest that its own obligation to sell was conditional on or subject to some external event or specified condition. Indeed, it said to Chase that “we are selling” to Apex as well as to Conrail. The factual issues in the case turn on telephone conversations, both before and after the telex, as to which conversations conflicting evidence was heard by the trial court. The district court is entitled to disbelieve the Vanguard witness.
The whole case is a good policy argument for the application of the old hard-line statute of frauds. But the majority opinion quite correctly relies on the “merchants’ exception” under N.Y.U.C.C. § 2-201(2). The only problem is that the exception merely states that the writing must be “sufficient against the sender,” not “and against the party receiving it as if he had been the sender.” The fact that the writing here refers only to the sender’s obligation to buy and not the receiving party’s obligation to sell makes the case more difficult. To be sure, the effect of the merchants’ exception is to take away the defense of the statute of frauds and not to change the burden of persuasion on the issue whether a contract was made. N.Y. U.C.C. § 2-201 official comment 3. But take that defense away, it does. See In re Marlene Industries Corp. & Carnac Textiles, Inc., 45 N.Y.2d 327, 331, 408 N.Y.S.2d 410, 411, 380 N.E.2d 239, 240 (1978); Pecker Iron Works, Inc. v. Sturdy Concrete Co., 96 Misc.2d 998, 1003, 410 N.Y.S.2d 251, 254 (Civ.Ct.1978). And once that has been done, we are back to the telephone conversations as to which conflicting evidence was resolved in favor of Apex by the trial court.