(1) Except as otherwise provided in this section a contract for the sale of goods for the price of five hundred dollars or more is not enforceable by way of action or defense unless there is a record sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought or by the party's authorized agent or broker. A record is not insufficient because it omits or incorrectly states a term agreed upon but the contract is not enforceable under this subsection beyond the quantity of goods shown in the record.

(2)(a) Between merchants if within a reasonable time a record in confirmation of the contract and sufficient against the sender is received and the party receiving it has reason to know its contents, it satisfies the requirements of subsection (1) against the party unless notice in a record of objection to its contents is given within ten days after it is received.

(b) Between a merchant and a buyer or seller of grain not a merchant, if (i) the contract is an oral contract for the sale of grain, (ii) within a reasonable time a writing in confirmation of the contract and sufficient against the sender is received, (iii) the party receiving it has reason to know its contents, (iv) it contains a statement of the kind of grain, quantity of grain, per unit price, date of contract, and delivery date of the grain, and (v) notice appears on the face of the written confirmation stating that the contract will be enforceable according to the terms contained in the confirmation unless written notice of objection is given within ten days, the writing satisfies the requirements of subsection (1) of this section against the party receiving it unless written notice of objection to its contents is given within ten days after it is received.

(3) A contract which does not satisfy the requirements of subsection (1) but which is valid in other respects is enforceable

(a) if the goods are to be specially manufactured for the buyer and are not suitable for sale to others in the ordinary course of the seller's business and the seller, before notice of repudiation is received and under circumstances which reasonably indicate that the goods are for the buyer, has made either a substantial beginning of their manufacture or commitments for their procurement; or

(b) if the party against whom enforcement is sought admits in his or her pleading, testimony or otherwise in court that a contract for sale was made, but the contract is not enforceable under this provision beyond the quantity of goods admitted; or

(c) with respect to goods for which payment has been made and accepted or which have been received and accepted (section 2-606).

Annotations

1. Applicability of section

2. Sufficiency of writing

3. Part performance

4. Sale between merchants

1. Applicability of section

This statute does not apply to agreements for the performance of a service. Professional Recruiters v. Oliver, 226 Neb. 16, 409 N.W.2d 304 (1987).

A distributorship agreement for the sale of newspapers for a price greater than five hundred dollars was within the statute of frauds. Omaha World-Herald Co. v. Nielsen, 220 Neb. 294, 369 N.W.2d 631 (1985).

Promissory estoppel will not prevail against defense of statute of frauds in oral contract for sale of grain unless alleged promise relates to abandonment or waiver of legal right belonging to promissor. Schott Grain Co. v. Rasmussen, 197 Neb. 267, 248 N.W.2d 42 (1976).

Motion of defendants for summary judgment was properly sustained where claimed contract for sale of grain was for much more than five hundred dollars, it was not in writing, there was no written confirmation, and none of the exceptions enumerated in the statute applied. Farmland Service Coop, Inc. v. Klein, 196 Neb. 538, 244 N.W.2d 86 (1976).

Agreement is bargain of parties as found in their language or by implication from other circumstances including course of dealing or usage of trade. Crane Co. v. Roberts Supply Co., 196 Neb. 67, 241 N.W.2d 516 (1976).

Under this section, seller was not equitably estopped from asserting statute of frauds as defense to breach of contract action by buyer, which alleged that seller's counterclaim for feed sold and delivered on open account constituted a clear admission that an oral contract existed within meaning of Nebraska statute of frauds, which provides that an oral contract is enforceable if party against whom enforcement is sought admits in his pleading, testimony, or otherwise in court that contract for sale was made. Golden Plains Feedlot, Inc. v. Great Western Sugar Co., 588 F.Supp. 985 (D.S.D. 1984).

2. Sufficiency of writing

An agreement for the purchase of a truck for more than $500 that is not signed by the party against whom enforcement is sought is unenforceable unless one of the limited exceptions set forth in this section is present. Woodhouse Ford v. Laflan, 268 Neb. 722, 687 N.W.2d 672 (2004).

The fact that there was no evidence of any oral or written agreement to purchase a truck that had a purchase price of more than $500 is sufficient to establish the absence of a purchase agreement that conforms to this section. Woodhouse Ford v. Laflan, 268 Neb. 722, 687 N.W.2d 672 (2004).

Several writings can be pieced together to satisfy the writing requirement of the Statute of Frauds, even though the writings taken alone would not have been sufficient. An admission within the meaning of this section can be made when the party denying the existence of the contract and relying on the statute takes the stand and, without admitting explicitly that a contract was made, testifies to facts which as a matter of law establish that a contract was formed. A compelled or involuntary admission of the existence of an oral contract, obtained during cross-examination at trial, may be relied upon to satisfy this section. The statutory requirement can be satisfied by way of pleadings, bills of particulars, depositions, affidavits, admissions pursuant to notices to admit, and oral testimony, including admissions made on cross-examination. An admission is not necessarily made whenever a party utters the magic words contract or agreement. If a party denying the existence of a contract uses contractual terminology, the court should look at the other evidence presented. An admission can be established through verbal admission and conduct. Nebraska Builders Prod. Co. v. Industrial Erectors, 239 Neb. 744, 478 N.W.2d 257 (1992).

A writing is not insufficient because it omits or incorrectly states a term agreed upon, but the contract is not enforceable beyond the quantity of goods shown in such writing. In re Estate of Nelsen, 209 Neb. 730, 311 N.W.2d 508 (1981).

Where written confirmation of an oral contract was received more than six months after the oral contract was made, receipt was not made within a reasonable time and the oral contract is not enforceable. Kimball County Grain Coop. v. Yung, 200 Neb. 233, 263 N.W.2d 818 (1978).

A writing confirming an oral agreement for the sale of goods valued at $500 or more is not insufficient to create an enforceable contract simply because it incorrectly states a term agreed to by the parties. McCaulley v. Nebraska Furniture Mart, 21 Neb. App. 125, 838 N.W.2d 38 (2013).

3. Part performance

Part performance of an oral contract for the sale of goods that is capable of apportionment is enforceable only as to that portion that has been either fully or partially performed. In re Estate of Nelsen, 209 Neb. 730, 311 N.W.2d 508 (1981).

Under statute of frauds as embodied in U.C.C., buyer by making a part payment and seller by accepting that part payment, make an enforceable contract only as to that portion of goods that could have been purchased by that part payment. In re Augustin Bros. Co., 460 F.2d 376 (8th Cir. 1972).

4. Sale between merchants

Experienced grain farmers who regularly grow and market grain on the open market as the principal means of providing for their livelihood and by reason of such occupation have acquired and possess knowledge or skill peculiar to the practices and operations of grain marketing are merchants within the meaning of section 2-104 and this section. Agrex, Inc. v. Schrant, 221 Neb. 604, 379 N.W.2d 751 (1986).