(dissenting) :
I respectfully dissent to the view of the majority as it relates to defendant Jos. Schlitz Brewing Company-
Rule 56 of the Montana Rules of Civil Procedure setting forth the basis on which a summary judgment can be granted is essentially identical to the federal rule. In Kober & Kyriss v. Stewart (Billings Deaconess Hospital), 148 Mont. 117, 121, 417 P.2d 476, 478, this Court in discussing the requirements of that rule stated:
“In this case, respondent has the burden of showing the absence of any genuine factual issue. 6 Moore F.P.2d, § 56.15 [3], starting at p. 2335 reads:
“ ‘The courts are in entire agreement that the moving party for a summary judgment has the burden of showing the absence •of any genuine issue as to all the material facts, which, under ■applicable principles of substantive law, entitle him to judgment ■as a matter of law.
“ ‘The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact.
“ ‘Since it is not the function of the trial court to adjudicate genuine factual issues at the hearing on the motion for summary judgment, in ruling on the motion all inferences of fact from the proofs proffered at the hearing must be drawn against the'mo*254vant and in favor of the party opposing the motion. And the papers supporting movant’s position are closely scrutinized,. while the opposing papers are indulgently treated, in determining whether the movant has satisfied his burden.’ ” (Emphasis, added).
The Court in Kober goes on to cite with approval a California case standing for the proposition that the summary judgment statute cannot be used as a substitute for the trial of issues of fact and such motions should be denied without hesitance if there existed any doubt as to the propriety of the motion.
It appears defendant Jos. Schlitz Brewing Company relies, solely on the language of the original “buy-sell agreement” and the provisions printed on the back of its standard order forms contending that those writings constitute the entire agreement existing between it and plaintiff Mustang Beverage Company,
Plaintiff Mustang Beverage Company alleged the existence of certain facts which substantially altered the nature of the contractual agreement between the parties:
1. Schlitz reserved the right to control the retail prices charged by Mustang for Schlitz products.
2. Schlitz demanded the right to inspect Mustang’s books and to require that certain records and books be kept.
3. Schlitz reserved the right to set and enforce sales quotas.
4. Schlitz required that Mustang expend money in advertising and promotion, including painting of trucks, without reimbursement from Schlitz.
5. Schlitz required that Mustang keep a certain amount of inventory.
6. Schlitz set mandatory procedures for destruction, at the expense of Mustang, beer which was too old.
7. Schlitz reserved the right to object to Mustang’s taking on distribution of beer products from other brewers.
8. Schlitz prescribed the method in which Schlitz products were housed in Mustang’s warehouses.
Mustang further alleged the consideration provided to it by *255Schlitz for these various alleged conditions was an exclusive distributorship of Schlitz products in a particular area of the state. Mustang alleges this fact was admitted in sworn testimony by a district representative of Schlitz,
It would appear that there were numerous factual issues presented to the trial court. If there is any validity to the allegations made by Mustang, then the writings upon which Schlitz relies are more in the nature of an elaborate waiver of rights than an accurate representation of “integration” of the terms ■of the actual contractual agreement existing between these two litigants.
This case involves a sales contract between merchants, and as such comes under the provisions of Montana’s Uniform Commercial Code. Under a proper application of section 87A2202, B.C.M. 1947, the very fact that none of the requirements and agreements alleged by Mustang were included or even mentioned in the written contract would compel their admissibility, if provable.
I would reverse and remand this portion of the cause for trial on the merits.