may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
James M. Bradburn,
Gregg B. Hagen,
Filed September 15, 1998
Koochiching County District Court
File No. C297542
Paul D. Cerkvenik, The Trenti Law Firm, 1000 Lincoln Building, P.O. Box 958, Virginia, MN 55792 (for respondent)
Considered and decided by Kalitowski, Presiding Judge, Amundson, Judge, and Holtan, Judge.
Appellant James Bradburn contends the district court erred in granting summary judgment in favor of respondent, claiming there are genuine issues of material fact. We reverse.
Appellant James Bradburn, who claims that Hagen sold him the Bobcat subject to the bank's security interest, made all of the payments due on the Bobcat from January 1994 through August 1997. In June 1997, just before the final payment was due, Hagen took possession of the Bobcat without Bradburn's knowledge or consent. In August 1997, Bradburn made the final payment on the Bobcat.
In September 1997, Bradburn commenced this action against Hagen to recover the Bobcat and damages. Bradburn moved for a writ of attachment, which was denied. Hagen moved for summary judgment, claiming that because there was no writing evidencing a sale, the statute of frauds of the Minnesota Uniform Commercial Code barred enforcement of the alleged sale.
There is no written evidence of any agreement between Hagen and Bradburn. Hagen alleged that he had an oral lease with Bradburn for the use of the Bobcat as long as Bradburn made the payments. Hagen provided evidence of the bank's loan agreement, which was stamped to indicate that the note had been paid in full. Only Hagen's name is indicated on the note. Hagen also provided evidence of his banker's notes regarding a separate loan, which indicate that Hagen was renting out the Bobcat.
Bradburn provided an affidavit alleging that Hagen sold him the Bobcat subject to the bank's security interest, that Bradburn retained sole use and possession of the Bobcat from January 1994 until Hagen took possession of it in June 1997, and that Bradburn made all the payments due the bank. Bradburn also provided the affidavit of his ex-wife, who believed that Bradburn had purchased the Bobcat while they were married. Steven Nelson, Bradburn's attorney, filed an affidavit stating that he had spoken with the initial seller of the Bobcat, who had indicated that he believed that Hagen sold the Bobcat to Bradburn subject to the security interest. Nelson stated that he was unable to get the seller's deposition because he was in the hospital with a broken back.
The district court granted Hagen's motion for summary judgment, finding that Bradburn had failed to establish the existence of an essential element of his claim; to wit, a writing to allow enforcement of his claim, or an affidavit by a disinterested party to establish the requirements of the exception. Based upon the entire case file, the Court further finds that [Bradburn] has not even established a metaphysical doubt as to the existence of a sale.
Finding that Hagen had presented the only evidence of ownership in the Bobcat, the district court granted Hagen's motion for summary judgment. This appeal followed.
evidence which merely creates a metaphysical doubt as to a factual issue and which is not sufficiently probative with respect to an essential element of the nonmoving party's case to permit reasonable persons to draw different conclusions.
Id. at 71.
Whether a contract is to be implied in fact is usually a question to be determined by the trier of fact as an inference of facts to be drawn from the conduct and statements of the parties.
Bergstedt, Wahlberg, Berquist Assocs., Inc. v. Rothchild, 302 Minn. 476, 479-80, 225 N.W.2d 261, 263 (1975). The issues of the existence of an oral contract and whether partial payment had been made are for a trier of fact. See The Press, Inc. v. Fins & Feathers Publ'g Co., 361 N.W.2d 171, 173-74 (Minn. App. 1985) (upholding jury's findings of a contract and of partial payment).
Bradburn claims that Hagen sold him the Bobcat subject to the bank's security interest and that the sale was complete upon delivery of the Bobcat in January 1994. The district court found that the statute of frauds was applicable in this case. The statute of frauds in the Minnesota Uniform Commercial Code provides that:
[A] contract for the sale of goods for the price of $500 or more is not enforceable by way of action * * * unless there is some writing sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought.
Minn. Stat. § 336.2-201(1) (1996).
There is no dispute that there is not a writing memorializing any agreement between Bradburn and Hagen and that the price of the Bobcat was more than $500. Therefore, the district court properly found the statute of frauds applicable. Bradburn claims that that the exception under Minn. Stat. § 336.2-201(3)(c) (1996) applies, taking this agreement out of the statute of frauds, because he received the goods and made all payments.
A contract which does not satisfy the requirements of subsection (1) but which is valid in other respects is enforceable
* * *
(c) with respect to goods for which payment has been made and accepted or which have been received and accepted.
Minn. Stat. § 336.2-201(3)(c).
The district court found that Bradburn had failed to present any evidence that Hagen had sold the Bobcat to him. But there is evidence that Bradburn made all the payments on the Bobcat, including the last payment, which was made after Hagen had taken possession of the Bobcat. There is also evidence that Bradburn had sole possession and use of the Bobcat for more than three years and that Bradburn and his ex-wife believed Bradburn had purchased the Bobcat. The amount of money Bradburn spent on the Bobcat (over $32,000) also seems to be some evidence that he thought he was purchasing it, rather than renting it. In addition, Hagen does not dispute Bradburn's statement that after delivering the Bobcat to Bradburn and for more than three years, Hagen did not tend to the equipment or act in any manner that might indicate he was the owner. Finally, except for Hagen's retrieval of the Bobcat after all the payments were made, there is no evidence that the agreement was a lease, as Hagen claims it to be. A reasonable jury could find that this evidence supports a finding that the Bobcat had been sold to Bradburn. The conduct of the parties creates a genuine issue of material fact making summary judgment inappropriate. See DLH, 566 N.W.2d at 69 (summary judgment should not be granted if reasonable persons could draw different conclusions from probative evidence).
Where there is no written evidence of a sale or a lease, but the parties' conduct shows that an agreement existed, this case should be presented to a jury to determine the existence of a contract and facts regarding the applicability of the statute of frauds.
*Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10
 Hagen contends that Bradburn is precluded from arguing that the exception applies because he did not argue this issue in the proceedings below. But the district court found this exception would be applicable if there had been sufficient evidence. In addition, both parties have fully briefed the issue on appeal, so we will address it. See Minn. R. Civ. App. P. 103.04 (this court has discretion to address any issue as justice requires).
 We note that the evidence from the banker's notes, indicating that Hagen was renting the Bobcat, is not probative, considering that Hagen is the source of that information.