OPINION
This is а summary judgment case. Clarence Kenney brought suit against John Porter for specific performance of an alleged contract to purсhase some 3355 shares of stock in a closely held corporation. Defendant Porter answered Kenney’s petition and filed a motion for summаry judgment. After reviewing Porter’s motion for summary judgment, Kenney’s answer to the motion, the accompanying affidavits and briefs, the trial court granted the motion. Plaintiff Kenney has perfected his appeal to this Court.
Kenney and Porter are the sole stockholders of the Valley Plumbing Supply Company, a Tеxas corporation. On April 16, 1971 they entered into an agreement of purchase and sale which provided that if either stockholder should become dissatisfied he could set in motion a buy-sell arrangement. This agreement provided for the buying out of either by the other or the sale of stock by either to the other. The agreement also provided for the purchase of the stock by the surviving party should the other die. The buy out/sell out portiоn of the agreement provided that in the event either of the stockholders should become dissatisfied with their position in the Company, he could give sixty (60) days notice in writing to such effect to the other stockholder. Such notice would contain a statement that the party giving the notice (Offeror) dеsires to sell his stock or purchase the other party’s stock and that he has estimated the value of his stock in said company to be a set сertain sum, which is to be stated in the notice. The agreement provided that the other party would have a period of sixty (60) days in which to accеpt or reject the offer.
On July 7, 1976, Kenney sent Porter a letter exercising the above quoted portion of the agreement. In his letter, Kenney offered to sell to Porter his 3,355 shares for $25 per share for a total of $83,875.00. Kenney also offered in the alternative to buy Porter’s 4,830 shares for $25 per share *591 for a total of $120,750.00. At this point the facts are in dispute. Kenney claims that Porter accepted the offer orally on September 7,1976, and aftеr a couple of scheduled meetings to close, the transaction failed to develop; and Porter then informed Kenney he would not cаrry out his acceptance. Porter claims he never accepted Kenney’s offer; that he never agreed to buy Ken-ney’s stock or sеll his stock to Kenney; and that he never signed any written agreement which obligated him to buy or sell his stock.
The only pertinent fact which is uncon-troverted is that Porter did not accept Ken-ney’s written offer in writing. Porter’s argument, with which the trial court evidently accepted, was that Section 8.319, Tex. Bus. & Com.Code Ann. (1968), requires that there be a written contract for the sale of stock and since there was no written acceptance, there was no written сontract for the purchase of the stock. Kenney presents seven points of error to this Court. The major question raised in this appeal is presented in Kenney’s points of error 1 through 3. These points allege that the trial court erred in granting the motion for summary judgment on the grounds that Porter’s aсceptance of Kenney’s offer had to be in writing, and even if this were true there was a fact question whether or not the stock in question was in faсt a security under Section 8.319.
The pertinent portion of Section 8.319 states:
“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 . .
The fact question allegedly raised is whether or not the stock in Valley Plumbing Supply Company constituted a “security” as that term is defined by the code. 1
Because of the language of Section 8.102(a) defining sеcurity, Section 8.319 would not apply unless “the securities”: were issued in bearer or registered form; were of the type commonly dealt in upon securities exchanges or markets commonly recognized in the area in which it is issued or dealt in as a medium for investment; and was either one of a class or series or by its terms was divisible into a class or series of instruments; and evidences a share, participation or other interest in property оr evidences an obligation of the issuer. From this definition above it is apparent to us that a question of fact is raised by the requirements set out in definitiоn itself. Before Porter can make any claim to the benefits of the statute of frauds contained in Section 8.319, he would have had to produce evidence at least sufficient to satisfy the limiting requirements of Section 8.102(a). The summary judgment evidence did not meet this criteria.
Under rule 166-A, Tex.R.Civ.P., when a defеndant moves for summary judgment on the basis of an affirmative defense, such as the statute of frauds, he must conclusively prove all the essential elemеnts of that defense.
Swilley v. Hughes,
The question for the trial court as well as for us on appeal is not whether the summary judgment proof raises fаct issues with reference to the elements of the plaintiff’s cause of action, but whether the summary judgment proof establishes as a matter of law that there is no genuine issue of fact as to one or more of the essential elements of the movant/defendant’s affirmative defense.
Odom v. Insurance Company of State of Penn.,
The fаct that this specific point was not raised in the trial court does not aid Porter. Porter had the burden of establishing his right to a judgment as a matter of law and there is no penalty of waiver on the non-moving party for his failure to point out that the evidence was only sufficient to raise a fact issue.
Swilley v. Hughes,
Notes
. Section 8.102(a) of the code defines security as an instrumеnt which:
“(A) is issued in bearer or registered form; and
(B)is of a type commonly dealt in upon securities exchanges or markets or commonly recognized in any area in which it is issued or dealt in as a medium for investment; and
(C) is either one of a class or series or by its terms is divisible into a class or series of instruments; and
(D) evidences a share, participation or other interest in property or in an enterprise or evidences an obligation of the issuer.”