relative to this case there was a business proposition that was made by my clients to end this and the sea for pulling methodology that would be used i think connection with the two thousand federal state election process and the meetings correspondence e mails that went back and forth between twelve americans and m s n b c prior should submission of a business that proposal i don't think it's in just few for the proposal which is approximately two have pages to the space document covers a variety of issues and in fact covers all of the essential elements that would be required read can be read to mean that the that the offer that was being made in the proposal which is clear from the other language in that paragraph s change might develop into other aspects of the relationship scope the services might change to see that the this is the beginning of a relationship could be interpreted to say this is the beginning to contractual relationship i don't think that that language is particularly problematic when what i would like to do though is i would like to address that one sentence that seems to be where the district court stopped its analysis and before i do i think that that's an important point to take into consideration here the court looked simply at this first paragraph and granted summary judgment which well we believe that we would think the court never even looked at the rest of the record said that the proposal was not an offer and could not be accepted and so did not look at the at the conduct of the parties to determine whether or not there was a stance and this is where the actually the supreme court  chief to the gentleman who had been we've got a deal telephone call telling him talk to your boss make a decision and then go to tell twelve americans what you decide the next day twelve americans and us and you see the link that was already done the website by and by twelve americans had already been developed and two hundred thousand dollars of twelve americans money had been invested in that already so this was not a counteroffer so much as it was a new deal that they were trying to push upon twelve americans after they have effectively performance i want to go back to th contract or stated agreed upon and that the parties intended the terms to be a binding agreement before the signing of the formal document so that's really the issue here the question is there's a pair if this is one instance regarding although that part of the memorandum decision is a bit muddled the district court only granted summary judgment based on the statute the reason i believe that is so is because when the reason the court did not attempt to apply statute of frauds to the contract is because the record contains references to promise it's not applicable because there was a promise to reduce the october eleventh ninety nine opposed into writing that was not done when we have when we filed a lawsuit to force the terms but documents that that was the only document that existed between m s n b c in twelve americans at the time that the we've got a deal telephone conversation that before signing that but the question is really for this court that the judge ignored is whether or not a this document prohibits acceptance orally and it is not unlike nimer it can and certainly it does because it has term it has compensation it has a property right description it talks about privacy it talks about the sensualist of this sort of relationship and so what are you asking the specifically to do his conversation with mr maxwell mr charlie has knew nothing about the technology the methodology the idea the proposal and so during january a great deal of time was spent bringing this man up to speed and in the context of the real business world when you get somebody new in front of you who is now responsible for the business relationship you don't beat them over the head and say give us our document they already had the agreement the acceptance of their proposal by the guy who farther down and in the part that he referenced was that line seven to ten approximately if you go down the line twenty one the question is about that same conversation well that he discussed what the terms would be answer no question did he say that the terms of the writing he would be getting you would be consistent with your october eleventh one thousand nine hundred proposal answer no question did he say anything other than i will be getting you were writing and when i say they are writing i mean whether he called  agreement is prepared by amazon b c and then do with that as they will let's reverse the situation let's say m s n b c was attempting to enforce this and we said hey we have an agreement consistent with your october  bit well as a stated in the restatement of contracts twenty six there has to be a manifestation of a willingness to enter into a bargain and it's not an offer if the person making it so if it's to give it's apparently the person making it does not intend to conclude of are going to tell he has made a further manifestation of assent saying you will prepare an agreement and we will review woods says and then we will have a further manifestation of a sandwich for there will be a binding contract if we the power to form a binding contract by saying we accept if we were trying to enforce that they would say look we said these were suggestions the basis of an agreement we said you would care an agreement and come back to us and we would review it we even said our attorneys haven't even seen this proposal so here we are now we're reviewing your proposal and we don't like it and we're not going to have an agreement that to have an offer an acceptance from us and we see had to be able to say we accept and that's if there is a binding agreement certainly details can be worked out later but if you but you negotiate agreements they said what he told us what we're going to be talking about is the financial ation show and how we get the technology done two of the major terms that mr listed as being president this letter these are major terms still being negotiated after the alleged acceptance that fact alone has been found in other cases to support summary judgment finding that there was no meeting of the minds at the time that the oral agreement is alleged but the point is just because there were terms in this letter these e mails showing ongoing negotiations so i guess my point is yes each side has evidence that points to but the undisputed evidence the undisputed objective manifestation show ongoing negotiations after january after december seventeenth and that is if you get past the fact that this letter was not an offer now on the issue of quickie again unless you are on her judg i see what you're saying and what you mean other questions on the contract formation i guess i would i would also argue though of course that he still says it was clearly anticipating a written agreement as you say  agree but in a content agreement like this one where there are technology issues and there editorial issues and there are all these other issues that have to be sorted out there three or four or five different people who have to agree in this particular business world the writing is going to be was hi we've got a deal you may have another thing said in a conversation that's uncertain but we do know is we have a letter saying put something together will review it we have another e mail saying we just want to start discussion o writing but they're not fine with forethought writing that's correct they're not and they they made it clear that they would not accept that writing in their underlying briefing because there was not a revenue sharing provision in it so that writing was never going to be accepted but they didn't accept it was withdrawn  was produced and it was being worked on there's no question that there were active negotiations take no question that there was interest in m s n b c in developing this this think the other point i wanted to make along this sort of partial performance argument is that when twelve americans made th letter proposal they had no product they had nothing but an idea and they are now trying to charge m s n b c with the the testing of this idea and the validation of their theories and the validation of their survey methodology and the building of a website which what they have needed to have any kind of company or product in any event and they're trying to target chamas and be seizing the would have done anything if they hadn't had an agreement and it's strikes me that it's that they see this relationship as a contractor relationship as opposed to a content provider and that we were contracting with them to develop a methodology and build a website which is not correct this was supposed to be an agreement with a content provider who had the ability to  content and that they didn't have that when they started so this is a high in the sky idea and there was a lot of enthusiasm and there was a lot of happy talk and that happy talk to the form of a letter which was not an offer and there was this phone call we said let's you know we've got a altogether is in question there was again happy talk there were discussions there was interest but ultimately no agreement and an agreement should not be enforced this court should affirming district court's order thank you very much i couldn't help but note that there was an awful lot of factual argument being made which of course is this is not the proper place for a factual argument that is a matter for an jury to decide whether or not the in terms after the conversation between match well and right to dispute here is what what was going on and what was going on w forward took over the responsibility for the website now that is a change in scope but it begs the question of whether or not there was an agreement beforehand and if i'm sure this course get let's get twelve americans all that they need with respect to specifications technological needs etc so they can do what is in the proposal and what is in what they claim to be the future into the future for future contractual arrangements as a defense to the creation of a contract in other words never owned the land said here's my letter of intent but you must  in the future come up with documentation and signing same thing in keystone in this case we are the creators of the proposal we don't take the position that this document