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

Clayton (D) entered into a contract for the supply of coal to Cohen (P) for one year. The contract was a requirements contract with a price fixed from August 14 to September 30 and then thereafter a market price for all lump coal with slack pricing to be fixed for the entire year. P claimed that he sent an acceptance of the contract to D, but D claimed he never received it. The parties conducted business under the contract until April of the next year when D refused to deliver an order of slack coal to P. P sued D for breach and the cost of obtaining its slack coal elsewhere. The trial court found that there was no contract between the parties, that part performance did not constitute acceptance, and the contract lacked mutuality.

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