On a Sunday, Donal Fisher (defendant) orally agreed to purchase a sailboat from Albert Cohn (plaintiff) for $4,650. The parties met the following day at which time Fisher gave Cohn a check for $2,325. A notation on the check read “Deposit on aux. sloop, D’Arc Wind, full amount $4,650.” The parties agreed to meet the following Saturday to close the transaction. That week, Fisher told Cohn that he would not close on Saturday because a survey of the boat could not be performed by that time. Cohn demanded that the transaction be closed that weekend. Fisher then stopped payment on the deposit check and refused to go forward with the purchase. Cohn eventually sold the sailboat for $3,000. He sued Fisher for the price difference and the costs incurred to resell. Cohn moved the trial court for summary judgment.