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Neri (P) gave a deposit to Retail Marine (D) to purchase a boat from the factory. The cost of the boat was $12,587.40 against which P made a deposit of $40. Shortly after that, P increased the deposit to $4,250 in consideration of D’s agreement to arrange with the manufacturer for immediate delivery on a firm sale instead of the prior 4-6 week wait. P rescinded the contract one-week later because of an operation. P requested a refund of his deposit. D refused because the boat has been already ordered from the manufacturer. P sued for restitution. D counter-claimed for $4,250; their alleged lost profits and expenses. D sold the boat to another customer four months later for the same price that P had agreed to pay. D proved without contradiction that its profit on the sale would have been $2,579 and during that period of time until the final sale to another customer four months later D has spent $674 for storage, upkeep, finance charges, and insurance. The trial court gave a summary judgment to P but offset that award by $500 under UCC 2-718. D appealed.

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