which was on april first two thousand and one there was a provision in the stock purchase agreement that allowed for an additional earn out payment in the event that can and the company attained certain the district court entertain summary judgment by the pollies ruled as a matter of law that the appellant had breached the contract rule that as a matter of law that the appellate were entitled to the maximum potential earning out under the stock purchase agreement of seven point two million dollars the district court also awarded prejudgment interest calculated from the date of the alleged breach which was december just two thousand and york on damages and as a result of that misunderstanding misapplied the summary judgment standard in this case and eared when it ruled as a matter of law that appellatives were entitled to a judgment not of seventy seven point on the issue of breach now i understand that i was specifically asking about the damage aspect of that i understand your argument on what i'm a liability but as to damages what he's seeking from us if we're just focusing on that issue alone well agreed purchase price of this company was forty five million dollars not not thirty two million as miss miles at forty five million dollars and that was based on the existing business and this new nationwide grind operation where this national  to buy a whole lot of equipment grind of beef freeze it sell it all over the country by migrating their customers nationwide to k n n so they can and has a market for this new ground beef the earn out fortune of the forty new yorkers to say that when you frustrated when you frustrate the condition when you prevent the condition you can't then rely on the non occurrence of that condition as a defense and if you allow a trial on what reach a contract well when you break your contract going to prevent the occurrence then you take it then you've prevented that occurrence and you can't then rely on the non existence of that occurrence yes what if meat was declared illegal instructive because i think it's very analogous to the facts here and it's also goes directly to your point and goes directly to several points that we're talking about this is an airline brokerage based broker he was hired by a subsidiary the parent has to approve of we're not going to submit it to the parent therefore the sales not approved therefore you don't get a commission so they go into the sale through another broker for apparently less money so the broker susan says when i contract you applies it to your good faith and very only and under that good faith and fair dealing you have an obligation to refrain from doing something to prevent the other party from performing or in this case to prevent that party from getting the benefit of the bargain and so they to can treat it as if the earnhardt numbers were achieved and the court went on to say in kaufman quote under new york law party injured by a breach of contract must be placed in the same economic condition as let me stop you right there isn't putting someone back in the same conditions it would be performed we wired that you determine what would actually have happened had it been performed instead of assuming that it would have been whether in fact the or not would have been meet the check down the grinding operation the frozen was shut down first the other was shut down later there was a big question about the economy and whether it would happen anyway but if you're taking a breaching part who reaches knowing that that for each will prevent the condition they knew that going in there's only one way to make the earn out that's to have a ferrari so they know if i shut down that right impossible to meet the numbers impossible i know them so now you're saying they and you see on one on the one hand well you know they should just be entitled to the maximum right out of the other hand maybe the law in new york is that a party shouldn't get a windfall and when they wouldn't have gotten it anyway it would be a windfall your honor if this was on top of the purchase price but this is a forty five million dollars purchase price which they withheld seven point two million it's not like the percent got we want more than we bargained for we bargained for a forty five million dollars sale seven point two was withheld we sold the company and we've been operating all these things that they want to talk about of problems and and nine eleven and the economy that's not that we had it with we had sold the company our only protection against arlen protection for k and then trying to make the numbers so it's we're not operating our our own protection is you've got to comply with the contract and you've got to comply by by fine equipment you've got to comply by migrating the customers and you've got to do it for two years not for six weeks so you can say your problems were forty five million i'm going to keep seven point two million to see what happens over the next two years and then six weeks later say i'm terminating a grind i know you're not going to make it i get to keep the seven point two million of the forty five that i agreed to pay and now we're going to have some jury speculate as to well if i hadn't thurman what might have happened that certainly sounds to me like i'm relying on the been a breach for for legitimate reasons i e that your client had misstated the revenues and or whether the breach was due to some corporate decision that they weren't going to do a grind because they were concerned about e coli bacteria and all of this stuff those are all flying around those issues and the judge said well you know as far as i am concerned those issues don't create a genuine issue material fact and the reason is just so that your honor has a contract doesn't give them the right to terminate for that kind of problem and that's not why they terminated we went through several motions to beckman so why was it terminated she said and i quote there was no decision about whether a granny operation was appropriate or not whether it's legitimate or justified or reason more paranoid or whatever it was just that company policy that's why it was the company policy so to now come along and say oh my gosh maybe we terminated because of problems or because of some determination that's not what they said that it was terminated for for a company policy what about this issue that she raised without sending it to arbitration or mediation first of all that was never raised before if you expect mn she was never presented with that issue that they asked for the entire case to be sent arbitration  i think the reason is when the new york court says i'm not going to let you just stand your preach on the basis of what would have happened if you had reached that's what you're talking about now i'm talking about that i'm not talking about that are doing the same thing they're not saying you have to prove that you would have been able to perform in order to and that's what they're saying here you have to prove that bennett that the company you sold and you don't operate  in or they're operating the company you have to prove that our offer that the defendants operation of the company would have been sufficient to generate the numbers you can't prove it outright because we terminated right it prevented it but you now have the burden of coming in here and proving convincing the jury that we would have done a good enough job and i think what jeff peckman came down on is that if she said this and or if you're going to create the uncertainty about the damages and you've got a contract that says one of the key things that i think we tried to do in our briefing to the district court and also to this court is that the police want to look at only what happened from december fifth two thousand and one which was the point when alliance finally decided to start migrating its ground beef apartments to cannes and that's what they want to look at and from there on out they put the blinders on and they don't want to see all of the things that happened in the eight months prior to that decision as it turns out and we've got a declaration from mr peachey anatomy that talks about the difficulties of trying to wind down nationwide in house grinding operations and the time it took to not probably in light of the original contract full commitment yes and maybe we have to concede bridge but it was also a decision and it was implemented in an environment as of september august panel that your client may well be guilty of breach and then on the other hand you continue to argue that maybe there is general you know issues with real facts respect to breach the fact of the matter is that the record is  that your client breached the contract at least like respective and you may have an explanation saying well gee you know they're really not bad guys you know and they did this for a good reason and they were worried about the whole i and they were those i'm very legitimate understandable business concerns a stock is just thomas indicated a but the fact of the matter is they signed a particular contract at a particular time and that argument although we believe that there are justifiable reasons i was for this case under new york law that you can provide performance with good reason and escape the consequences of iraq well if you can see guillotine there is we agree with that we agree that the cooler air rule applies to the extent that it's not just a pliable breach we agree with them but we also agree that the goal of the next step farther in assuming that nonperformance that interferes with their condition proceeding and automatically entitle non virgin party to a maximum amount of damages and relieve  had supported by declaration when they implemented the idea of this growing operation in terms of now x and i'm growing capacity optimum profit liability profit margin instantaneous national distribution no problems with equipment perfect case scenario and we adopted each of those parameters on top of the actual financial performance the plan during the earn out period we presented this evidence and what we found was indeed if you had started from a hundred million dollar base business and built from there yes you probably trigger payment but when you take reality into account and you're starting down at a forty one million dollars base business for a fifty three million dollars base business and super