(dissenting):
I would reverse and remand the summary judgment dismissing the plaintiffs’ claim for damages.
The district court granted The Limited’s motion for summary judgment and dismissed Trebor’s and Rotano’s complaint because it concluded appellants “can’t win this case as matter of law,” citing Trebor’s and Rotano’s supposed inability to satisfy the New York statute of frauds. N.Y.U.C. C.Law § 2-201. This conclusion was, in my view, erroneous.
To satisfy the statute, a party need only (1) produce a writing, (2) signed by the party to be charged, which (3) recites a quantity term, as indicia that a contract has been made. J. White & R. Summers, Handbook of the Law Under the Uniform Commercial Code 58, 61 (1980) (“White & Summers”). It is unnecessary that the writing state all the terms of the contract or that it state them accurately. Id. at 58. Here, the July 30 draft agreement was signed by The Limited and contains a number of quantity terms. The agreement (and the accompanying letter) also contains a reference to the “mutual desire to continue the business relationship,” which is further indication of an ongoing contractual relationship. Cf. Gestetner Corp. v. Case Equip. Co., 815 F.2d 806, 809-10 (1st Cir.1987) (failure to answer letter referring to “continuing role as exclusive dealer” satisfied Maine statute of frauds). At the very least, the draft agreement is sufficient to satisfy the statute as to the $1,503,800 worth of identified merchandise described in the agreement and make the contract enforceable to that amount. See White & Summers 59-60.
The question is then whether the July 30 letter and draft agreement are admissible under Fed.R.Evid. 408. That rule protects from discovery certain statements and conduct presented in the course of compromise negotiations. The district court stated that The Limited documents were “probably” so privileged. However, the rule protects only compromise negotiations surrounding a “claim which was disputed as to either validity of amount,” making such evidence inadmissible “to prove liability for or invalidity of the claim or its amount.” Fed.R. Evid. 408. According to counsel for The Limited, “[h]ere there is only one dispute, whether or not Trebor and Rotano owed the limited [sic ].” Trebor and Rotano never contested the validity of The Limited’s claim or the amounts owed for delivered merchandise. Rather, their claims are for breach of their oral agreément with The Limited as to credit terms aind the terms on which future deliveries of gpods were to be made. They seek admission of the memo-randa not to prove the validity or amount of either claim (that is, the terms of the contract), but merely to satisfy the statute of frauds. Cf. 2 Weinstein’s Evidence § 408[05] at 408-32 (1988):
In other cases, such evidence has been admitted to prevent abuse of the general exclusionary rule and its policy of promoting compromises. The existence of negotiations for compromise is admitted to negate a contention of lack of due diligence in presenting a claim, or to show that the real party in interest had already settled with the defendant all *513claims outstanding from the transaction. It would also be permissible to show, under the statute of frauds, that a debt was revived by acknowledgment or that, pursuant to a statute of limitations, the presumption of satisfaction of a judgment has been rebutted.
(Footnotes omitted.) Satisfaction of the statute would permit appellants to offer parol evidence of the existence and terms of its alleged oral agreement with The Limited. This, of course, does not mean necessarily that Trebor and Rotano can succeed on these claims:
A plaintiff who wants to enforce an alleged oral contract and who can hold up a memo satisfying 2-201(1) does not necessarily have much to write home about. A complying memo is not boon in the way a noncomplying memo is bane. Absent applicable exceptions, the plaintiff simply loses if he fails to produce a complying memo. But a complying memo is not equivalent to victory.... And whether sketchy or not, the theory is that a complying memo itself is not conclusive proof of the existence of the oral contract, let alone of its terms. Beyond producing a memo “sufficient to indicate that a contract for sale has been made between the parties,” the plaintiff must still persuade the trier of fact that the parties did make an oral contract and that its terms were thus and so. By parity of analysis, a defendant who unsuccessfully pleads the defense of the statute of frauds may still “defend on the facts” and prevail, that is, he may still persuade the trier of fact that no contract was ever made.
White & Summers 56-57 (footnote omitted).
Accordingly, I would reverse and remand for further proceedings.