good morning i'm robert dewberry the attorney for the appellant and i was asked to bring along the the credit application so you could look at it and see a better a better version of what this this  language contains and weirdoes so i did bring the original that was actually used in evidence it was the one that came to the fax machine that well plywood and i brought some copies as well and this is the original fax that's correct i think so i think i think it's fair to state that the one that he signed wasn't as blurry as this one because when faxes come through they there are some degeneration so i think as far as looking at the size of the font and so forth the language where there's this guarantee appears it's at the top of page one right underneath where it says to roil plywood p o box etc so you can get an idea of how big the big the font is and where it appears on the page but this is more blurry than it would have appeared to the person when they signed it because this is just  to do not was not available it was not offered into evidence and i thought about bringing one of these blank forms from the client along today but since it wasn't in  evidence i i didn't feel it's right to do that so where did that where did the back go wrong well pretty much like i said in in my grief i think that they they adhesion we had a vendor trying to get somebodies business we had a company with six million dollars in sales they had two other vendors besides royle there was certainly a complete freedom of ability to contract you know the lumber business is a commodity and commodity businesses are driven by price and service let me ask a couple of what about this yes you just sort of i read of our product on the following terms and conditions thank you over the backside over here he has the terms on which credit will be extended all right that's true now that  true enough so does it create any ambiguity and it's not about what was going on well if i think i think a person could read it that way if that's why they wanted to i can't even read the sense of that and i'm reading it with my glasses here that's barely legible and then on the back you have the terms i mean i don't know whether it's ambiguity or the concept is ambiguity or mutual assent that i would think it's quite reasonable to say ok you can barely read reading what he signed you're reading a fax transmission i realized that that it's still very very very tiny small print on the french and if you turn to the back i bill i would submit that the cases are very clear neutral sap is a question of fact and it can't be interfered with because you weren't there to see the trial judge he was there if you read it he wasn't well i think that that is i think that they just simply used their own judgment i think that this language going back to my question to you know you can read you know if one were to read this it is a very but that doesn't necessarily mean that you conclude that he isn't bound by even though he didn't subjectively understand in other words it simply you have to go beyond that to say this is so unfair that we simply cannot let this let the stand we can't let people in business be be tricked into this it's so unfair well here back didn't go off on and i think they're they're dead wrong when they did that because they they had they couldn't stop there they only they only performed half the analysis when i meet you with that yes mutual stand i think that again the the analysis goes that you got it then fine all right did is this so unfair is it so devoid of conscience that we can't we can't allow this even though the guy didn't read it or understand it well there any testimony whether he did or didn't read it he testified he didn't read it so didn't make much difference what it says he agreed to it he cited  that that's the general rule and then it goes on to say and exception to this general rule exists when the writing does not appear to be a contract and the terms are not called to the attention of the recipient in such a case no contract is farmed with respect to the end disclosed term and it seems to me that when you set forth the terms and you don't call attention to i've really pretty critical term that it's under the section well to mean if you put it on the front page of the very it's a very first thing that the person this to then seems to have the obligation to because it's not a contract to call that particular term to the attention about acting i think number one because it's it's on the very top of page one it's not something that's you know that you have to go looking for it's it's right there and people in business do know that credit applications they are contracts they govern our relationship this is how we're going to work together i tell you stuff you pay for it if you have a claim you make a claim and so much time we're selling it f and so forth in other words people in business actually juniors in a chapter seven proceeding james joseph is the chapter seven trustee and he has been substituted into this proceeding as a real party in interest because the debtor has no interest in whether or not the claim is allowed or not he has no financial interest in the outcome ambiguous and so the bankruptcy court finding it wasn't ambiguous simply said he signed it it's in forcible and did not look at any of the facts or the evidence exception i think that's what they did or i think they said because it came big us we need to look at all the facts to determine whether or not there wasn't fact mutual sense the mere fact that the fine doesn't mean there was and i think it's important that this piece of paper according to world plywood constitutes two contracts not one it's a contract between oil plywood and audial wood products i think setting forth the terms and conditions in which well why would will sell products to audio wood products and there is no place for an individual signature or no place where it's at gallery tour signature the second page it says foreigners or officers signature both on the front first and second p i understand your honor but you're dealing with a corporation not a sole proprietorship whose sole proprietorship there'd be no need for a guarantee or for that matter a partnership but when dealing with a corporation they knew they were dealing with a corporation moral plywoods representative say an who was the only person for moral plywood to deal with audio with products had not read this document when he presented it he did not know that there were three portably personal guarantee language in that and but he was aware that mr ambrosio would not plywood and testified at the trial but was not involved at all and he's negotiations or are there for the presentation of this application testified that you know it was mcdonnell douglas we don't care if the purchasing agent signs it but if it's joe's lumber then we with the exception of the personal guarantee language i cannot read the first hour in the first paragraph even with my recent class it's what a reasonable person looking at this as an individual acting on behalf of the corporation think that they were personally a personal guarantee credit application and personal guarantee that you're right but if you read it if you read it if you can't read you read it seems pretty clear that you know the personal guarantee as facts the testimony of mr adelson that he didn't know it contained guarantee language and again he was the only person representing royal plywood in this transaction he presented the document to tim best the purchasing agent for audion wood products never had i the final two issues and found the contractors ambiguous and then based on the fact that there was no mutual assent and i think based on the evidence in the record that's a correct determination  do you with the fact that he didn't read it how does that fit into it i don't know that it does your honor because the fact that you don't read something or a party doesn't read something of course is not a defense and so from the standpoint he his intent was to sign this on behalf of the corporation was his intention to get you are at any given time audio with products based on other testimony had at least a minimum of three lumber vendors and it was a high volume of business i think it was one hundred thousand dollars a month that mr eggleston with his former employer in selling  audio wood products they were said sorry sam we're going to another vendor we're not going to deal with why would but instead he sent over what's titled credit application which amoruso believe he was signing on behalf of the corporation with no knowledge that there was any personal guarantee language about amaro so which would be normal in the case of a personal guarantee there was absolutely nothing that would cause a reasonable person looking at this objectively to believe that they were personally guaranteeing the obligation of the corporation by signing this document and it was not called if the claim while plywood is allowed the net will reduce the amount of distribution to other creditors this will not be a one hundred percent case it will be a percentage distribution i do not know what that is ok if a trustee has a statutory duty to object