dissenting.
I dissent. The Statute of Frauds that governs is ORS 78.3190.1 The majority does not disagree. Defendant’s admission in his deposition that “We’ve got a deal” creates a genuine issue of material fact whether that statute bars plaintiffs’ action.
Defendant testified at his deposition:
“Q. Now, if you will look at the tape of Exhibit 10, there are some initials,
“A. Uh-huh.
*497“Q. Are those Stan Eastern’s initials?
“A. Yes, I believe so.
“Q. Did you see him initial the original of Exhibit 10?
“A. Yes, I saw him initial it.
“Q. And to the right of those initials, there is a writing, Roger Nelson. Is that Mr. Nelson’s signature?
“A. Yes, I saw him sign that.
“Q. Did you see him date it, also, 9-13-82?
“A. I assume so.
“Q. When did Mr. Eastern initial Exhibit 10?
“A. Well, Roger Nelson signed it and then Stan Eastern initialed it.
“Q. Before Roger Nelson signed it, did you have any discussions about him signing it?
“A. No.
“Q. Do you remember at that meeting saying, ‘We have a deal’?
“A. Yes.
“Q. Was that before or after Mr. Nelson signed it?
“A. I believe it was after.
“Q. Who signed it first — who initialed or signed it first, Mr. Nelson or Mr. Eastern?
“A. I think Mr. Nelson.
“Q. And then it was passed over to Mr. Eastern?
“A. Actually, I think Roger leaned over and signed it.
“Q. And then Mr. Eastern signed it?
“A. I guess so.
“Q. And then after that, is that when you said, ‘We’ve got a deal’ and shook hands?
“A. Yes.”
Defendant’s statement in his deposition that “We’ve got a deal” is an admission “otherwise in court” within the *498language of ORS 78.3190(4).2 Although the majority discusses this point, it fails to reach a conclusion and cites no contrary authority. See majority opinion n 6, 70 Or App at 492. The majority asserts, however, that defendant’s statement is not, as a matter of law, an admission that a contract was made for sale of a stated quantity of described securities at a defined or stated price. See ORS 78.3190(4). In his deposition defendant referred to the written contract that his lawyers prepared that sets forth the price and the quantity of stock to be sold. He described the items in that document to which Nelson had objected, stated “I didn’t think they were substantive” and also stated his desire to reach agreement. He stated that the parties had agreed on certain of the items and listed these items on exhibit 10, that they also listed the unresolved items on exhibit 10 and that he then said, “We’ve got a deal.” Although defendant did not admit in so many words “We’ve got a contract for sale of 102 shares of Rico for a price of $950,000,” his admission, in the context in which he made it, raised a genuine issue of material fact as to whether that was what he meant.
The majority disagrees with Gruen Industries, Inc. v. Biller, 608 F2d 274 (7th Cir 1979), but it is in point. In discussing a similar section of the Wisconsin Uniform Commerical Code the court stated:
“[A]n admission under section 408.319(4) need not expressly acknowledge the existence of a contract, nor need it describe all of its terms. Dangerfield v. Markel, 222 N.W.2d 373 (N.D. 1974) (applying the statute of frauds for sales of goods, section 2-201 (3)(b) of the UCC). The admission need only describe conduct or circumstances from which the trier of fact can infer a contract. Packwood Elevator Co. v. Heisdorffer, 260 N.W.2d 543, 546 (Iowa 1977). Whether the defendants’ statements admit the existence of a contract is a question of fact. Quad County Grain, Inc. v. Poe, 202 N.W.2d 118, 120 (Iowa 1972). Thus, summary judgment should not be granted if there is a genuine issue whether the statements admit the existence of a contract. * * *” 608 F2d at 278. (Footnote omitted.)
*499The issue under ORS 78.3190(4) is not whether defendant’s admission makes the documents enforceable as a written contract. The writing that Eastern initialed did not state, as defendant did, that “We’ve got a deal.” The issue also is not whether plaintiffs and defendant entered into a contract for the sale of the securities. The issue is only whether defendant’s statement, when considered in context, raised a genuine issue of material fact — that is, whether defendant admitted that there was a contract for the sale of 102 shares of Rico stock for a price of $950,000— sufficient to avoid the Statute of Frauds under ORS 78.3190(4). I believe that it did. The court erred in granting summary judgment to defendant.
ORS 78.3190 provides:
“A contract for the sale of securities is not enforceable by way of action or defense unless:
“(1) There is some writing signed by the party against whom enforcement is sought or by his authorized agent or broker sufficient to indicate that a contract has been made for sale of a stated quantity of described securities at a defined or stated price; or
tt* * * * *
“(4) The party against whom enforcement is sought admits in his pleading, testimony or otherwise in court that a contract was made for sale of a stated quantity of described securities at a defined or stated price.”
See URSA Farmers Cooperative Co. v. Trent, 58 Ill App 3d 930, 16 Ill Dec 348, 933, 374 NE2d 1123 (1978); Cohn v. Fisher, 118 NJ Super 286, 287 A2d 222, 227 (1972); see also Morey, Administratrix v. Redifer et al, 204 Or 194, 214, 264 P2d 418, 282 P2d 1062 (1955); Haines v. Pellet, 62 Or App 428, 431, 660 P2d 1074 (1983).