about a little you know that paddy so the winter heat is the chemical that is in but even when you add this chemical you still need to protect the concrete by putting and given yes there's now going to be a mid september start with that said then we're going to have about a two grand increase for heat and protests now so that's what star hard would it have been in the october letter to make a contingency in case of cool weather or extraordinarily cold weather or our bill does not take into consideration additional been saved by august he responded saying he agreed that neither of them could have known back at least in august and i think that's a fair inference they've been in no knock over what the weather conditions actually would be in other words you  viewed in favor of stark and the errors of thinking are you saying this turned out to be an extraordinarily cold there was frost on the ground and he immediately goes to carter and says well you know i expected i had excluded it i mean he's not saying this worldly life but he's saying it right i'm going to need this and starter is saying not so what happened start says i was threatened at this start start being better than i did as the what's new and start he said the weather changed it got worse than we thought it was going to be i think that's a fair amount we now need something more that i had excluded in the beginning and start oh sure go ahead do it and do it if you say six to just do your work do what your contract says when he and then the pad fails the way goes further extra cost and i think stark is put in a no win situation so we would suggest knows the politics behind war so if that subcontractor is wrong even if you think you're right you're wrong you're going to have a problem because they're going to come back at you and i think start early thought this process out that's why i think and it's starts that's why i think the truck or it had its own decision of what should have been done but that's a question of fact for trying only hessian one other thing we're talking about two six nineteen one two six nineteen it's really a summary judgment original e start of the bidding process on this it was delayed for no fault of either of the parties in this case it had to do with the city of champagne so what happened was it turned out that the project was not going to start until october november and so as the owner on the project said the same thing to do harder in terms are to start going all the sub contractors we're going to be doing this project in the winter months and of course everybody in that business knows if you do a project in the contingencies in and that's exactly right everybody's going to have to do their best to estimate it bill contingencies in everybody in this project and start harder the other subcontractors with the exception of electrical contractor in the increase in the october one only reference to winter heat and i read that that's all it said and it said twelve thousand one hundred dollars for that extra winter heat with joy specifically excluded one for protect protection in my brief i posited the only five i picked up i'm sure there's several reasons but only five reasons i could think of why they did not include that they knew since they were not going to be starting till november they ne court so they could have put a contingency in though and i think that's what the court was kind of alluding to with the stars attorney yes they could have done something because they did that on other phases they put a contingency that well for example i think they did  the soil stabilization that if we were going to these circumstances we are but it will go up to as much as i think the number was one hundred seventy nine thousand dollars we may have that contingency if it turned out the soil had problems and they had to do with what's called wind stabilization but they didn't do it with regard to winter protection and this is why doesn't this agreement that whatever protection is excluded so why doesn't hundred eight hundred eighty thousand dollars to make sure that the concrete that they poured doesn't become defective and the reason they have to do that with protection is because the project is the plague no fault of theirs whatsoever and now they're responsible just for making their product perform the way it was supposed to are to get i think you have to go back to october when they're told to re their contract in june that's going to be done during the winter it could have increased in price then after winter protection they could have done all of that they chose not to and literally chose not to in chose to stick by their original contract in which they would do happened but i guess we're just speculating at this point in time as to what might have happened i mean again you know this is where we get into the point of speculation all we require to do you know are they are after all i'm saying is if the owner tells you i don't want th know when you come there and you ask them you know they were asking for authorization it wasn't like the carter asked them to do it or the owner are asking to do it they came on their own they asked for optimisation they were told no perform according to the because when at that point in time they asked her incurred told them we're not going to pay for it they specifically we're told we're not been authorized if extra work we want you to perform pursuant to your contract defendant well again we're only talking about the winter protection here my point for this court is there is no benefit to cover absolutely no benefit is under that they didn't receive a pen if it that they were not entitle to under their contract when i think of a benefit i think is something above and beyond what they were contractually already title to they were entitle to have the work done to work  true i'm not saying it i'm saying they have to get a benefit that's unjust for them to retain they were contractually entitled to this they held the bail the control of how they were going to build their contract they could have built their contract to say ok listen if we run into unusually cold weather we run into these problems then we may need to charge you more for this but they let it not to do that they said we're just going to exclude it entirely we accepted it on that basis that it was going to be excluded that's actually correct in this contract provided that you could have extras as long as it was approved you could actually respect reproof and it had a whole procedure for how you could you could obtain extras you'd make it you make an application for extra work order and it ha to be approved by curve in this particular case they didn't do that they they applied for and were denied they were denied by both her and they were denied by the owner of the gap the other essentially being told we don't w contract they control their bid and they submitted the bid and we accepted on the basis that they they submitted their bid us so we're simply asking them to look at their contract otherwise you know you'd have a situation where they would be controlling you'd have to pay them they just simply say we have to do it you have to pay us and that's a situation you really have every subcontractor say we decide you need it you now have to pay for and i don't think that would be a just result is or question of fact your weather the weather protection was i don't i don't see that because i say simply the contract is the contract and it required them to do it we didn't called for they would have gotten paid and that would have been the end of it now you're saying well so you're speculating that well gee what happened if the concrete later failed the duchesse of the speculation i mean that that's not a fact that that's just simply or you said this was gratuitous this hundred eighty thousand dollars yes because under this under the circumstance of this case judge when you start came to carter they had that they had an office meeting and then they had exchange of le they were sent a letter saying we will not approve a change order to pay you for that so when you're told you're not going to be paid for it in the face of that you go ahead and do it i'm saying you're doing it back to industry because you're told by the owner you're not going to be paid so that to me answers that clearly they were told we're not going to pay you for this that work and the third one is defended except in the service i don't see what the d the most one of the most important the most important is no contract existed for those services they want to look in at the winter protection work and say no contract existed for that but there actually is a contract in citizens excluded in the concrete work was certainly in there so my point is i think the contract did this and you know so civically excluded and they say in the face of all that they went ahead and did it and again when you talk about unjust enrichment in the quantum era the keystone all that has has defend and receive a benefit unjustly and i do not see again i interest in the court of question but i do forty minutes ago is why not that october letter didn't you protect yourself or your clients say you know we're right we can't guarantee the quality of the concrete and more or less we provide we're protection which will cost more  this is what i'm excluding and in construction i think you sort of have to buy justice kogan yourself justice that you can't necessarily anticipate every possible thing that happened situation also and maybe give some of the images and i think it's really needed to go mitigate the problem i know it's difficult to understand destruction is a little unusual in sense of what happens here start i think i think there's a question of so that the same one that saying don't do it i don't think was explicitly saying i did but i do agree that that would be the consequence of that but that was there before the waiter protection was undertaken up there there i think there's it's not