This section contains the nature of the case and procedural background.

American (P) contracted with Union (D) for P to sell its business and equipment for $135,000. D knew that P was in financial difficulty, that P was in arrears on its mortgage and that the bank was pressing P to sell. D gave P a $5,000 check as down payment on October 16, 1976, that was to be held in escrow until closing. On November 1, 1976, D repudiated the contract. The bank took possession, and the equipment was eventually sold for $35,000 and on June 1, 1977, and the real estate for $55,000 at the foreclosure sale. P sued D for breach of contract. The trial judge ruled that the sales price seven months from the contract date did not represent fair market value on the date of the sale and that P did not produce any evidence of fair market value on the date of the contract. Damages being the difference between the contract price and the fair market value on the date of the breach, P failed to meet his burden of proof. The trial court gave judgment to P for nominal damages. P appealed.

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