Plaintiff is not entitled to summary judgment. The oral quote by the agent of plaintiff is supported by delivery of materials, the unsigned contract, the type of billing, the testimony of its agent confirming the quote, and defendant's failure to timely object to the terms until months after the initial shipment, and plaintiff's change in its billing methods months after those initial deliveries. These facts, if proven, would take this agreement out from under the defense of Statute of Frauds. It is possible that at trial, the facts may provide the elements of promissory estoppel.
Defendant argues that plaintiff's reliance upon the account stated doctrine is misplaced.
Defendant is correct for reasons and rationale cited in its brief. But, Defendant is not entitled to dismissal of the complaint at this point in the litigation. Martin, the agent, testified he did not internally at Gerlach record in written form the terms of that agreement the way he understood it. EBT p 12, line 6. He testified he put figures on an estimate, but his comments about it were not included in excerpts of testimony given to the Court.