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

P and D entered into an agreement where P agreed to locate candidates for acquisition and to advise D on the best way to proceed towards an acquisition. The contract was never reviewed by counsel D. Nor did the parties have any specific discussion about when a company was to be deemed 'under consideration.' D would retain P in connection with D's 'acquisition program' as its 'exclusive agent' to 'locate appropriate candidates for acquisition and to advise D as to the best way to proceed.' D agreed to pay P its expenses and a 'success fee' 'upon the consummation of any acquisition or investment in the furniture manufacturing field.' The contract was subject to cancellation at any time upon thirty-day written notice by either party. D remained obligated to pay P a fee for a period of two years beyond the termination day. On January 6, 1982, P provided D with a binder containing financial information about various companies in the furniture industry. The parties drew up a list of furniture companies which, based on their discussions. Hekman was on that list, although Hekman did not appear on what was labeled: 'short list.' P set about pursuing the Hekman lead. Heckman was not interested in selling. There were extensive discussions between P and D over the acquisition of Heckman. P and D terminated the contract on December 1, 1982. In the letter of termination from D to P, in an apparent effort to avoid any misunderstanding, two companies were listed as being 'under consideration': Jasper Cabinet Company and Kittinger Company. In a letter to D dated May 5, 1983, P listed Hekman among 84 other companies which he believed were 'under consideration.' Even though terminated P kept his eye on things. D began to cultivate contacts at Hekman. In February of 1983, Hekman decided to sell. On July 14, P forwarded the information he received to D. On the previous day, however, D received the same information directly from Salomon Brothers, and on July 22, returned the information which had been forwarded by P. On July 27 P sent another letter stating his belief that P would be entitled to a 'success fee' if D were to acquire Hekman. D responded and revised the 84-company list to 8 (and Heckman was not included). P claims it never got that letter. D purchased Heckman in the fall of 1983, and P demanded a success fee. P sued D.

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