recall ever actually speaking to my client you know over the phone or in person concerning the extension request the extension request was  second and in the record there is a letter drafted by my client's son signed on my client dated simberg eight of of that year and basically it says a lot of things but it doctor hankins at in the court below did file a an affirmative defense based on the statute of frauds in that and therefore i think the court also found that under the partners that specific performance of the contract was  justified based mainly on that case i think that he's is probably the closest of any only case we have to the situation here however it's my contention that the court relying on the partner's vs down is probably over applying the actual ruling in that case in that case there was plenty of evidence that the sell  well i will still look really close but now i want forty thousand dollars or so i believe on the partners is distinguishable in that there's clear evidence of waiver not just that letter that was sent in may of ninety nine concerning the extra money they wanted but a series of communications between the parties which more than a lot would allow finding th case after the original had passed this fight the waiver was motivated by that seller's desired to see more money as she thought she could get more money from her half of their to the person seeking it as he performed this part of the contract or was prevented from doing so by the conduct of the other party  found that my client in that way they're closing in and i mean partners there are definitely found that there was a waiver in this case we have a real estate agent m who was purportedly you know representing dr hankins who as i argue was most likely operating under the assumption that my client would agree to extend the closing  defining this based on some messages that might have been left by dr mr beattie regarding the desire for an extension messages left of my client court found that my client knew that  seller mr schorr to communicate a desire to change the contract and if no response is made then he he gets the modification by to overturn the second thing that it is important as there were two findings that are that are unchallenged by alan and that is that the defendant was aware prior to the december second closing date that pla ff sure desired an extension of that closing the second finding is that the defendant did not until december fifteenth notify anyone that the december second date was important sentences that support in the work of a specific performance and to voice a principle for other circumstances that would fit into the principle of equitable stop heat can't remember anything at the time trial here to here and at one time one says something and then the contradicted but what is clear is in trail exhibit seventeen there is documentation of a communication that went on between eating and hankins about the request or in phineas after december second when the son writes this letter reportedly withdrawing themselves from the contract they referenced an oral agreement what other remit could it be but the one to continue the closing date now setting aside all the confusing testimony in the lack of memories of those two six sixty at page six seventy and i quote when a party intentionally relinquish is in no knight pressley as by objection or by contact such as silence inconsistent with an intent to enforce rather than releasing the objection then and there the parties in week four ruling on arbitration he said they don't like the ruling and then trying to say well wait a second there was a clear conflict back here you know of the arbitrator talk to the other party to move the closing so the equitable circumstances support the award of specific reform noted the that the no disproved visions of the contract those are quite complicated with the language and how that works but i think the argument is clear that if even if hankins did believe that there was a breach he did have a duty to send out notice and give an opportunity here which didn't and then therefore that as a as an additional support for the court's award you can rely on but say nothing so i don't think that there's any scenario where that's ok and then to say well ok have i had a change of heart eight days after the sale maybe because my son is for the right principles espoused by romney but certainly by principles of the stop by silence or waiver you read the charter it seemed to focus on the fact that waiver commission under section c program see if you focus on the aspect of paragraph deed which asks was he was the buyer of the property really willing enable the answer to that is yes and that brings this was in that aspect of it as well the thing i think is interesting here is that the question of whether or not a buyer was ready willing and able to purchase the property is a fact question and i would sit as court what did you read in the briefs that with that would show that an silence enough and i think you know we have to be in our but we also have the actions of mr and mr hankins that show yet no intention of showing up for a close enough not to believe that there was going to be one otherwise we would have had some evidence in this case that said i was really i was at property next to this property that was sold says hey wait a minute i found out what ed did i'm not sure dead they would do is doing or was clear in what he was doing by the way the clothes in it was a couple weeks ago we think that that's a point i think sometimes we have to ask commonsense we have the statute of frauds for reasons and the best reason might be that we wouldn't end up in the end of court on situations like when there's an affirmative duty an opportunity to speak nothing my client did other than silence here created a duty for him to do to do anything and  terms of whether mr short was ready willing and able to perform on the second i think mr l moans wonderful accounting in his in his brief shows that even if you know could have closed on the second on the m's i believe the court found that mr short was ready willing and able within a reasonable time of december second t to pay the contract price  that nothing in my client's behavior supports a waiver silence alone does not constitute a waiver in the absence of creating the duty by rather