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

Ps decided to invest in the risky business of ostrich breeding. Ps purchased a 'trio' of ostrich chicks by oral agreement from Ds in 1990 for $9,000. A 'trio' means two hens and one male. Ps discovered that their 'trio' consisted of two males and one hen. P testified that his first knowledge of the error came when the darker features and feathers of the males appeared. D testified that it can be difficult to determine an ostrich's sex and that he had advised P to have the birds' sex confirmed within ninety days of the sale. P denied that he had been so counseled. There is disputed testimony as to whether Ds agreed to exchange a hen for one of the males upon learning of the alleged breach. Ps then traded both of their male ostriches in 1992: one to a Michigan breeder for another male of equal value and the other to an Indiana supplier for two female chicks. Ostrich hens do not mature sexually for three years. The hen purchased from Ds has not produced any offspring. Ps also acquired another hen, now of breeding age, from a Michigan breeder. This particular hen has produced offspring. Ps filed suit for breach of contract on June 15, 1993, requesting compensatory damages in the amount of $15,000 plus lost profits. Ds filed a motion for summary judgment on January 25, 1994, claiming that Ps had not raised a genuine issue of material fact on the issue of liability, specifically that Ps had suffered damage from the alleged breach. The court ruled for Ds. Ps appealed.

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