(concurring and dissenting):
Although I agree with the majority’s handling of the split distributorship claim, I dissent from the disposition and legal analysis of the claim arising from the contract for sale of the bricks. In my view, the majority misapplies the statute of frauds in assessing the sufficiency of the written memorandum and fails to understand the posture in which that issue is presented to us on appeal from the summary judgment entered below.
Beehive asserted a cause of action against Robco for breach of a contract to sell it one million bricks. Robco eventually moved for summary judgment on this claim, asserting that the parties’ oral agreement was unenforceable because of the statute of frauds. Robco did not move for summary judgment on the basis that, on the undisputed facts, the parties had never reached an oral contractual agreement. The trial court has yet to resolve the factual dispute between the parties regarding the existence of a contract, a fact that is critical to Beehive’s breach of contract claim but immaterial to the following legal question, which was put to the trial court on summary judgment and which this court should be answering on appeal: assuming there is an oral agreement to sell one million bricks to Beehive, as it alleges, is the writing legally sufficient to satisfy the applicable statute of frauds?
The only terms of the parties’ contract the statute requires in writing, according to the majority, are the signature of the party to be charged and the quantity of goods, both of which are present in the letter of April 17, 1986. The only remaining question, then, is whether the writing evidences a contract for the sale of goods. In order to answer this question, it is first essential to identify what agreement Beehive claims to have orally reached with Robinson. This was not alleged to be an immediate purchase and sale of one million bricks in October 1986. According to Beehive, the parties orally agreed that Beehive could purchase, and Robco would sell, one million bricks — in the special color requested or in other, readily available stock colors — for resale to Larkin. One key term of this agreement, Beehive asserts, is that Beehive could purchase bricks from the total million-brick order in batches, as needed by Larkin, over a period of twelve to fourteen months, i.e., until mid-October to mid-December 1986.
Viewed in this context, the letter of April 17 is patently sufficient to evidence the claimed contract to sell one million bricks of whatever color. The letter acknowledges receipt of an order from Beehive for the one million bricks for Larkin, unequivocally says that Robco is willing to fill the order, and states that substitution of stock colors will be allowed because the special color requested cannot be produced. The fact that the April 17 letter cuts off the time period during which the bricks could be purchased by Beehive at May 16, 1986, instead of at the end of the period until October or December 1986 alleged by Beehive, only shows a present disagreement between the parties regarding the agreed-upon life of the contract. It has no bearing on the sufficiency of the writing under the statute of frauds since, according to the majority’s interpretation of section 70A-2-201, the duration of the contract period during which Beehive could purchase the bricks is not a term that need be in writing.
The appropriate disposition, therefore, is to reverse the summary judgment on Beehive’s second cause of action and remand for further proceedings. It will then be *834Beehive’s burden to prove that the parties reached an oral agreement and that one agreed-upon contractual term gave Beehive twelve to fourteen months in which to complete the purchase. If Beehive succeeds at this, then Robco would have breached the contract when it would not allow any purchases out of the million-brick Larkin order between May 17, 1986, and December 1986. Beehive would, of course, have to establish damage from this breach, presumably by showing the profits lost when Larkin purchased Robco brick from another middleman during that period. There is already ample evidence in the record of the existence of a consummated contract between the parties, including Robco’s April 17 letter and the undisputed fact, recognized by the majority, that Beehive had received from Robco and resold to Larkin approximately 300,000 bricks out of the total million-brick Larkin order by May 16, 1986. Even if the factfinder was not convinced that the parties agreed to a contract life of twelve to fourteen months, it might find that the parties intended a reasonable time period for purchase by Beehive from the full order and that such a reasonable period extended past May 16, 1986.
In short, for purposes of this summary judgment, the existence of the agreement alleged by Beehive should be accepted as a given. Instead, the majority confusingly remands for resolution of a factual issue that has no real bearing on the question before us, even though Beehive will ultimately have to prove it had a contract before it can recover for any breach. The message to trial courts and attorneys is that you cannot ever resolve a contract enforcement claim in favor of a defendant by summary judgment based on the statute of frauds, unless defendant does not dispute the existence of the alleged oral agreement. As a practical matter, however, no defendant is going to admit that the parties reached an oral agreement because it could result in a waiver of the defense of the statute of frauds. See 2 A. Corbin, Corbin on Contracts §§ 498, 320 (1950 & Supp.1984); see also Bentley v. Potter, 694 P.2d 617, 621 (Utah 1984).
I see no reason why a defendant should not be able to deny the existence of the purported oral agreement, yet claim entitlement to summary judgment as a matter of law on the statute of frauds issue. Summary judgment is supposed to be the device by which a defendant can say to the trial court, “even according to the facts as contended by plaintiff, I am entitled to judgment as a matter of law.” See D & L Supply v. Saurini, 775 P.2d 420, 421 (Utah 1989). The value of summary judgment proceedings in contract cases defended on the basis of a statute of frauds is obvious. If a writing does not satisfy the statute of frauds, a plaintiff cannot enforce an oral agreement even if one was, in fact, reached. In that situation, the parties and the judicial system are spared the time and expense of a meaningless trial on the issue of whether or not there was an oral contract. See, e.g., Machan Hampshire Properties, Inc. v. Western Real Estate & Dev. Co., 779 P.2d 230 (Utah Ct.App.1989). If, however, the writing is sufficient under the statute of frauds, as I believe it is in this case, the plaintiff is entitled to the opportunity to prove at trial both that the parties have an oral contract and what the actual terms of that contract are.