dissenting.
With all due respect, I would reverse for a jury to determine what I believe are material issues of fact. I agree largely with the majority opinion that ASC cannot recover based solely on the letters from IBM. However, the letter of February of 1989 spoke of an intent to order 30 million capacitors “over a minimum period of two years”, this to be contingent upon IBM’s requirements continuing for the items. Despite this, it was not until March of 1994 that IBM first told ASC that, because the cost of the film capacitors was greater than the price of ceramic capacitors, IBM would not be purchasing the capacitors at the levels previously stated. In 1997, IBM discontinued all purchases of the 2.5 mm capacitors. March of 1994 is, of course, outside the minimum two year window for which the commitment was made and 30 million capacitors had not been purchased. One could certainly conclude that, during the two year period, IBM made no decision as to diminished lack of need for the items. If they did come to such conclusion, the record is clear that they did not communicate it to ASC. At a minimum, factual issues of bad faith and justifiable reliance would exist with IBM waiting so long to act. I reject the claim of IBM that the “minimum period of two years” does not mean two consecutive years. Common sense tells us that ASC could not have been expected to operate the plant for one year and then shut down the manufacturing line while waiting one or more years for IBM to place more orders in some other unknown year.
The district court relied on some testimony given at depositions, calling the testimony “undisputed” to the effect that IBM made no oral or written promises that it would either purchase a specified quantity or that ASC would recover the costs of its capital expenditures. I do not believe the testimony is nearly so clear.
Former executives of ASC testified. Robert Harris claimed that IBM was making “commitments” and “initial representations that they made that never were held.” He testified as to telephone calls and meetings during which IBM officials were making “representations” about how much volume there would be. He talked “numerous times” with IBM officials as to “what was coming and what we needed, inventory items, so on and so forth ...” While he did admit that there was no promise to buy a certain number of units and the word “guarantee” was never used, he also testified that IBM wanted ASC to maintain inventory levels of the product, saying to him “something to the effect, you know, don’t worry about that, we will take it, which to me is a promise again.” He testified that IBM did not “live up to their commitments.” He spoke of IBM verbally expressing IBM’s intentions to buy certain volumes. He spoke of numerous telephone conferences he had with IBM officials. He claims IBM “did not live up to their intentions of saying, we are going to buy so much product from you.” IBM at meetings with ASC showed graphs of the volume of the product going up over the period of years.
Allen Tompkins also testified at a deposition. “IBM never held up their end of the program on the usage purchase orders that were supposed to be. The original commitments were never made.” He testified he relied in part on “knowing the people we were working with.” They had worked on other projects with IBM. There is evidence in the record of a course of dealing between these two companies and this is also relevant. Tompkins said he “would say there were some verbal commitments.” He also testified that IBM supplied false information “concerning the *1210number of capacitors IBM would purchase.”
Other deposition testimony was presented by Ronald Anderson, a 30 year employee of ASC. He spoke of an IBM “commitment they were going to buy 30 million pieces over two years.” According to Anderson, IBM “continually stated” that these were minimum quantities. These are obviously oral communications after the letters were written. He testified in answers to various questions as to commitments and what he called “firm commitments” made by IBM.
A promise is described in the Restatement of Contracts 2d, § 2(1) as “a manifestation of intention to act or refrain from acting in a specified way, so made as to justify a promisee in understanding that a commitment has been made.” I do not believe this can be determined in the present case as a matter of law. We are, of course, not talking about a contract here but about promissory estoppel. I fully recognize that a mere statement of opinion or prediction of future intent will not sustain an action for promissory estoppel. While a promise is certainly required, Nebraska recognizes the distinction between actions for breach of contract in which there is a requirement of reasonable definiteness, and actions for promissory estop-pel in which there is the requirement of reasonable and foreseeable reliance. Foreseeable reliance is the very nature of the remedy available. Promissory estop-pel allows for damages only as justice requires and does not attempt to provide a plaintiff with damages based on the benefit of the claimed bargain. Reliance damages are relatively easy to determine, whereas the determination of “expectation” or “benefit of the bargain” damages in a contract action require more detailed proof of the terms of the contract. See Rosnick v. Dinsmore, 235 Neb. 738, 457 N.W.2d 793 (Neb.1990), Hawkins Constr. Co. v. Reiman Corp., 245 Neb. 131, 511 N.W.2d 113 (Neb.1994), and Hoffman v. Red Owl Stores, Inc., 26 Wis.2d 683, 133 N.W.2d 267 (Wis.1965).
Having spent $2.3 million, it would seem that ASC relied on something. I believe it is for a jury to decide what the course of dealing was between IBM and ASC, what IBM said and did, when each statement was made or action taken, whether what IBM did and said and the course of dealing would have permitted ASC to reasonably have relied on such matters, and whether IBM should have foreseen such reliance by ASC.
For these reasons, I would reverse the grant of summary judgment and remand for a trial. I respectfully dissent.