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

Gruber (P) manufactured 90,000 sets of Christmas cards, and S-M News Co. (D) was obligated to sell them through its 700 wholesalers with $.84 per box payment to P. D distributed the cards to only four wholesalers, P sold 40,000 sets for less than 10% of the expected price. P sought $101,800 in damages for lost profits and its out-of-pocket expenses. At trial, P failed to meet the burden of proof for computing his expected lost profits. P then sought recovery for his out-of-pocket expenses made in reliance on D's promise to perform. D contended that there could be no recovery; if D fully performed there would have been a loss to P.

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