if all we do is well i on this letter it's very easy for someone to have a conversation and then afterwards send a letter and says this is to confirm our agreement but it's just me sending you a letter confirming the agreement as i describe it and even describing the representative that is not it's not signed this letter was not authored by the appellants it was authored by the appellee is the response i'm sorry and i think i take that part of the back and i think that's very important because on the duration it states that the duration of the contract will have to be approved by management well if that doesn't indicate they didn't that be the same thing well the reason why that's important is that there's no indication  the contract may not be an essential service and in fact here it states if it was to be an essential term in this case as there was no issue of fact regarding it certainly the that's not the case spot agreements post date the may first agreement but they're all we're all kind of spot agreements well that's various people the problem is this that just that that as your honor points out is are saying is that this may first agreement was not what may have been an agreement but it was modified by subsequent spot agreements there's two things wrong with that if you think there's something technically wrong with that may first agreement as to having two signatures look at the spot agreements they're not signed by anyone and it's they don't really need aeration and they don't have any requirement that management approve it use only them no and you got paid on the spot agreement price twice about you saying oh no we had a twelve month contract we should have gotten a different price and there was no interactions of the parties until september at the time that they wish to disengage them from what they saw as an unfavorable agreement that is the first time they state that notwithstanding the fact that we're we've been dealing with you for the last four months that he wasn't interested in entering into agreements on a spot base i thought was my question had they not actually purchased oil from you before this may first agreement it is my understanding with regards to especially given the fact that the contract contains a separate clause for a cancellation provision and that cancellation provision states that has to be on six months notice only after the first twelve months it's a twelve month evergreen with a six month cancellation so the first twelve months have to be twelve months you can't do six months then after that one year then you can cancel on six months  that's whatever green means is that while there's no evidence presented by the respondents below indicating that that was how they interpreted what does evergreen mean case was decided as a summary judgment was decided on a record that was not fully developed a low here there is nothing in the record in the case respondents interpreted that provision as your hon am looking at this as a situation where the whole idea to create different relationships with this particular supplier or under california law if they ate the ration provision under agreement is not an essential term of an agreement and the contract can be performed without and reasonable duration period will be implied by the courts which case even if california law is three times let's get right down to look at what's your best case to say that an agreement this is twelve months evergreen six month cancellation notice that is not an essential term of the argument of the agreement when you've got a different price for the long term agreement than you do for spot well your honor with regard that the duration of the contract is not essential and the fact that there's no duration and it's fallen out of the agreement doesn't render the entire contract fatally uncertain the district court found that the reason why that case did not apply is because then the district court found that in consolidated theatres there was no issue as to whether or not there was an underlying agreement between the parties that existed independent of the ration clause in the district court found this case and the tasco disputes the existence of the agreement however there's as we stated we don't see any the mere fact that one party to the agreement subsequent to a lawsuit being to whether or not an agreement exists between the parties i think that the mere statement made by and is very important as the tasco representative stating that there is such this confirms our agr at least for summary judgment purposes carries the day because here there is then an issue of fact as to whether or not there is a agreement between the parties it's not merely the statement of with issues of fact now this is a separate when at this case assuming you do have a valid contract and assuming that duration is either not a material term or will just assume that it lasts for a while until we hear from the management why are you in breach of that contract contract for a minimum of two hundred thousand gallons a month you never supplied twenty gallons a month of conforming oil there is evidence in the record change maybe this is in the record and i missed it you tender that oil first of tasco and they refused to accept it that's what i did that happened and that happened after they'd found your other oil non conforming in the terms of the contract in fact because it accepted them right subsequent to the oh shit months and then when it was very clear as to whether and what the market conditions would be task i said we're not going to get live well from you we oh what a little over three months yes so drink a little over a three month period how much oil did you supply to them that actually satisfy their requirements between one hundred hundred two hundred in the end in the end they take it tasco took it unless they've got different specifications when they take it from somebody else like that there's nothing in the record indicating that that was the case then why isn't tasco entitled after you failed during a three month period to meet the two hundred thousand gallon per month and certain specifications why aren't they entitled to say you know what we might have had a deal but we don't now well the throbbing they may have been entitle to but they didn't do it and the reason is because the indication is that haskell didn't see this as a breach that would rapture that agreement apparently time asco was still hoping hedging its bets on the market thinking that the market would press go the other way they wanted to bind river bank to that agreement so there's no notice of non that the contract did not come into fruition until after they accepted hundreds of thousands of gallons of oil and then later in september said well now it went through a third party that we're talking about several different shipments over almost something like two hundred thousand gallons or a little under two hundred thousand dollars were sent there from riverbank over three hundred under under inconsistent positions and the position the fact that they they could say well we didn't send those because we really didn't believe there's a contract well you don't have to agree now that there was a contract the court finds and it can  judgment your statement that there's a contract creates issues of fact as to whether that's an agreement and you took a risk and that was sending those that were breached if you didn't think that was an agreement perhaps you or you had a e's the district court found for reasons why there was not a meeting of the minds as to this may first letter being a contract a couple of them had been identified by the panel before this would become a deal it was my understanding he had to do something i don't know exactly what he had to do but then he's asked later actually the same in the next did mr larsen ever at any point ever tell you that he had obtained management approval no he did not did he ever tell you that the duration would not require management approval no pages sixty seven sixty eight x serves one duration to quantity the contrair the so called contract says let's see do zero one month and four hundred the next and maybe one hundred after that as long as they came out to two point four million two point four million over twelve months district court identified that as not being a meeting in the mines because we think we're going to get two hundred thousand that's what we want that's why we're entering into a long if we are into a long term do we need regular we don't need two point four in december we want two hundred testing and freight later mr condit believes look at excerpts of record thirty four that the price reflected being here meaning the formula price is a net price  so that you know that we don't deduct from that the price the cost of freight and transportation why do we know that because in the spot contract that we negotiate with them and they agreed to are excerpts to record two hundred seven which is kind of deposition he said says well we hadn't determined the process to map out that was going to be required for freight testing in transportation and the district court identified that our two seventy three as another reason why there's not a meeting at the mines so we have this so called contract on which they're you  oil to some place called a group company called cascade and they hold it and then they tested or they reprocess that i mean we actually sent an independent lab colombia to test it and then it comes our way now it turns out we've been told here that this so called three hundred thousand gallons which by the way you're being told you were told today it was conforming oil mr sprott is asked that adept and the way riverbank took care of that debt was to give cascade not tasco cascade three hundred thousand gallons well which cascade could do whatever i want to with those get with those we tender are we offered in a three month period and let's assume that that three hundred thousand was that the end of july so that's three months right may june july we're supposed to  minimum of six hundred thousand gallons well let's say we got three hundred in july i don't think we did but let's say we did do we get another three hundred no we get seven rail cars us starting in late may and ending in about mid mid july maybe a little bit into august only two of those shipments conform issue ok long story short if you add up the two quantities on the spot contracts seventy six thousand and fifty eight thousand you end up with one hundred thirty four thousand gallons let's add to that the nine received nine tender non conforming we don't know if it was conforming three hundred thousand you get up to about four hundred forty thousand that's the best thing to do we're still on hundred and sixty thousand gallons short if that's not a material breach that's quite a large percentage of six hundred thousand if that's not a material breach i don't know what is now this notion that we had to give written notice i don't know where that comes from i haven't seen any authority that says we have to give them written notice that the world's not conforming you know it's kind of strange it wasn't really a surprise wasn't i mean we rejected so many tanks so why do we have to tell them oh you're materially reaching by the way i mean isn't that pretty powerful the act of rejecting tender goods doesn't that communicate that there is a breach and then what about mr larsen when he who's riverbanks president ever contradicted larson's statement and that this report so noted kind of in its declaration talked only about one hundred ninety degree flashpoint he didn't say anything about that says look we had to have two hundred thousand a month we didn't have it and it wasn't working for us and it had to be on specs and they had to be a minimum and we never quote everything was falling apart on a chain that we never got to two hundred thousand that was very very important to us the product didn't meet our specs and the company that was processing for riverbank cascade couldn't bring it in to specification and there was no product that was forthcoming that would meet two hundred thousand a month he question you know that of course you can if you can wave the statue of limitations you can waive defects in a written agreement even defects and in which you say you're going to eventually turn into a written agreement by performance by park performance so to tell you the truth we need it oh well we needed lots of oil and probably we were willing to accept plenty of oil at least two hundred thousand gallons a month if mines no contract management approval was a and essential term that could not be implied but if there was a contract if this may first agreement was a kind back then they materially breached and under the law a material breach accept two hundred thousand a month and that would be performance under the may first letter your right i mean i'm not going to deny that we would reject conforming oil and i'm not going to deny that larsen had we've been given two hundred thousand a month you know at the conform we probably would have either are looked on or give a contract we would have overlooked the management approval requirement or we had would have gone quickly to phoenix and said give me approval this is working but as it turned out i mean why i'm not sure we have to really justify what we did thousand seventy six thousand was for forty five cents minus freight transportation and testing coming out to thirty nine point five the formula price for that well would have been forty six point fo larsen says ok on the spot basis and that's the fifty eight thousand guess how much the price was for that nineteen cents the the so called formula price would have been forty nine cents so we have a thirty second differential on fifty investigation has gone into this may first agreement whether or not that is a binding bilateral agreement between the parties i submit that if we look at those five contracts so called spark contracts they don't meet the by contract are the evidence that the may first agreement wasn't the real deal between the parties that's to be no issues of material fact that those spike contracts are bilateral agreements there's no way that would meet that standard that spot contracts there are issues of fact as to whether or not they constitute a bilateral agreement between the parties fact the evidence was as discussed in our brief on page twenty five that the parties the agents for both alternative positions in litigation that's fine but for purposes of summary judgment if you cite evidence indicating that there was a breach of an agreement that is evidence in fact in the king there was an agreement if you cite evidence that and i think and i think that's the material problem with the fans position and having the summary judgment motion be granted you can take alternative positions if a jury or judge