249 Cal. Rptr. 813 (1988). Like the letter of credit in Procyon, Eastimpex's letter of credit incorporated the terms of the oral contract and its very purpose was to guarantee payment and bind Eastimpex.
With respect to the requirement of a signature, the court in Procyon reasoned that the company that directed the bank to issue the letter and supplied the relevant terms "signed" it upon its issuance, since the bank "was acting as [the sender's] agent when it sent the letter." Id. at 413. Similarly, Eastimpex instructed the issuing bank as to the terms of the letter of credit and must be held responsible upon issuance.
Although the letter of credit did not constitute a written contract, as urged by SNH, it did sufficiently "indicate that a contract for sale has been made between the parties" within the meaning of 2201(1). Accordingly, because SNH has produced probative evidence that takes the Wild Bamboo Shoot Contract out from under the statute of frauds, Eastimpex's motion for summary judgment on this claim must be denied.
There is a further reason why Eastimpex is not entitled to summary judgment on this claim: the judicial admissions exception to the statute of frauds. Eastimpex has acknowledged the existence of a wild bamboo shoot contract in numerous pleadings and papers submitted to this court. See Joint Statement PP 29 & 32; Stip. Case Mgmt. Ord., Princ. Issues b and h; Counterclaim P 5; Pl.'s Ex. J, Def.'s Resp. No. 5 to Req. to Adm.; Mullen Dec., Ex. A, Def.'s Req. for Adm., Defin. G.
California amended its statute of frauds in 1988, effective 1990, to provide a "judicial admissions" exception where "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 . . . ." Cal. Com. Code § 2201(3)(b). The adoption of the judicial admissions exception emphasizes the evidentiary purpose of the statute of frauds. The California Supreme Court previously recognized this purpose in Seaman's Direct Buying Service, Inc. v. Standard Oil Co., 36 Cal. 3d 752, 764, 206 Cal. Rptr. 354, 686 P.2d 1158 (1984), noting that the statute of frauds' primary purpose is to bar fraud-induced enforcement of contracts never actually made by requiring reliable evidence of the existence and terms of the contract. The statute of frauds is meant to prevent courts from enforcing an alleged oral contract that never actually was entered into, not to prevent enforcement of all oral contracts. See id.; Cal. Com. Code § 2201 Comm. 9. Thus, the statute of frauds defense may be asserted only against a wrongful allegation that one is a party to a contract, not simply to prevent enforcement of an agreement that happened to be oral.
There is no California case-law defining "judicial admission" under section 2201(3)(b). However, authorities from other jurisdictions with a similar exception are instructive. The rationale for the exception is that a party charged with a contractual obligation should not be able to assert the defense where it has admitted the existence of the contract. Courts have recognized that the danger of perjury by the party seeking to enforce the contract is dispelled when the other party admits to the oral agreement. See Anchorage-Hynning & Co. v. Moringiello, 225 U.S. App. D.C. 114, 697 F.2d 356, 360-63 (D.C. Cir. 1983) (discussing the exception as a judicially-created one although the District of Columbia statute contains such an exception).
A judicial admission may be contained in a statement of undisputed facts, an answer, a bill of particulars or any other pleading, or it may be contained in testimony such as a deposition. See Dairyland Financial Corp. v. FICB of St. Paul, 852 F.2d 242, 246 (7th Cir. 1988) (deposition testimony); Babst v. FMC Corp., 661 F. Supp. 82, 88 (S.D. Fla. 1986) (same); Forest Nursery Co. v. I.W.S., Inc., 534 N.Y.S.2d 86, 88 (N.Y. Dist. Ct. 1988) (bill of particulars). Furthermore, the admission need not contain all the terms of the contract; it is sufficient if it describes the "conduct or circumstances from which the trier of fact can infer a contract." Gruen Indus. Inc. v. Biller, 608 F.2d 274, 278 (7th Cir. 1979) (discussing the Wisconsin statutory exception, which is more restrictive than California's).
The court finds that Eastimpex's numerous "admissions" that an oral contract existed constitute a judicial admission within the meaning of section 2201(3)(b), and therefore defeat its reliance on the statute of frauds.
For the foregoing reasons, defendant's motion for summary judgment on the first and third claims for relief is hereby DENIED.
IT IS SO ORDERED.
Dated: SEP 29 1994
MARILYN HALL PATEL
United States District Judge