case for argument supporting arc welding against american welding things have quieted down alone by my clients the sellers and as a result they drafted or remet into their contract known as the deferred cylinder payment that remedy stated that if you look at our exhibit fov it's an e mail from tammy cloying and it's about ten days before the deadline was to end tammy correlates bachus to a spreadsheet that shows thirty nine hundred customers of my client in that e mail she states only a little bit over six hundred have been on it now the reason we know that cow eventually provided to us after the deadline on may twenty eighth is wrong is because in that spreadsheet of tammy cornell who by the way the defendants called cylinder nazi that spreadsheet that spreadsheet showed the exact same numbers of cylinders that was then presented to us as a final count on may twenty eighth in other words they don't do not talk to over half of the customers about cylinders yet they want to head and said is the final count out and we stand here today saying they still have not provided us with what was required under the contract eight count that is verified of the cylinder because they have not changed i figured the other thing wrong with the district court's findings in that particular respect is we never promised them sixty five hundred cylinders if you read the contract you'll say we promise them all of th cylinders that we have and it's patches the schedule and the schedule says approximately sixty five hundred that was intent and if you look at the transcript even ron haskins the president of the friend and all the cylinders there you know if the court got that right that it was eighteen hundred short would you agree that that's not approximately sixty five hundred you're honored that it was that it is not sixty  correct yes and its findings with respect to the count would you agree that being eighteen hundred short roughly does not amount to approximately sixty five hundred well and you're out of this brings up an issue which an overall picture is kind of mine but if you read the contract under deferred cylinder payments it says that there will be the deduction for the amount below sixty five hundred dollars i know that up to accept but that was a separate question the question you're not arguing that approximately sixty five hundred could mean sixty five hundred minus eighteen hundred are you know your honor we're saying that it's not a guarantee that's not a promise under the l it in our brief to say approximately is not a promise of sixty five up the court the biggest mistake we think the court it was to modify this written contract by a supposedly verbal telephone conversation this funding there was this modification and the judge sense that second even if there were no modification nothing would happen nothing would matter because since the kelp came up more than five thousand three hundred cylinders were delivered american gets to keep the hundred fifty thousand dollar holpen that's the basis of the district court second ruling right your  more than five thousand three hundred cylinders were delivered and they weren't as i say it seems to me if you lose on two grounds you have to address both grounds on appeal if you hope to prevent it and if contrary finding of fact so you're now it seems to me this whole line of argument about whether there was a world modification is irrelevant unless the district court's finding about the  letters is clearly erroneous is that a fair statement your honor i would disagree in this respect without modification they were supposed to do the count by april fifteenth and they did not do it yes they were but there's nothing in the delivered they have to pay some portion of it right you began by saying well the contract doesn't say we promised six thousand five hundred soldiers and that's true but the contract also  apologize but it is actually the district court right that issue up at the district trial level and we pointed out in the contract and then you read it if you read his open comments in the transcript he sense oh i see i see it now  well you're sitting on your back patio you can tell a coach who got moved so you obviously agreed the pool be moved so those i would say in indiana you have to have i think more than just that the telephone the modification obviously our point that it wasn't modified now here's probably the more important point you need a separate consideration for moderate modicum modification there is no separate consideration for this mom patient there is no advantage to my client to allow them to continue to do what they were supposed to do by a certain period of time because it had no benefit him why wouldn't they be benefited by the fact that the longer they had the more cylinders they could find get more money your client gets your honor that's what they were supposed to do in the first place in other words they're saying they got an extension to do something underlying issues this court has already identified in this case is the count the only evidence in the record of the count is the evidence that was provided  card i don't believe there was a modification of the contract other then the deadline extension that the court found was given as a result of the contact that the conduct of the parties so yes there was the one modification of the deadline otherwise the contract itself was desperate and here to proof of the chaos again the count being customer accounts that were actually transferred from ark to a w g the appellants arkan mr mccormick provided absolutely no proof of the count all they do that the camp that a w g provided was wrong in fact judge young the district court at the end of the trial specifically examined mr mccormick on this very point and mr all he had was speculation that the camp was wrong speculation is not evidence upon which a judgment can be rendered now the first argument in this case whether it was late or not shifted at trial and the appellant's essentially abandoned their late this argument and tried to reply with an argument that the camp was never finished well the count was finished there was a specific count for each and every one of the one thousand two hundred thirty three customer accounts that were transferred the suggestion is based upon a draft spread sheet which rate were being paid because the way that money is made in this industry is the cylinders are rented and then they're refilled so the argument that it is late for the two reasons this court has already recognized in the district court recognized as a matter of fact is the deadline is extended if they lose is a matter of law because it doesn't matter whether this the audit was finished late because the purpose of that deadline payment actually owed in that required it was based on the count there had to be five thousand three hundred one cylinders actually delivered for there to be any duty to make that payment or to make a timely payment because the shortage was so great and was less than five thousand cylinder still lippard it didn't matter whether a w g met that deadline the other argument that we heard was that mr mccormick and art filled the contract by delivering all of the cylinders that our own i respectfully disagree with that assertion the duty was to deliver approximately sixty five hundred cylinders the pellets had the best knowledge and they admitted that how many cylinders they own before this deal for business reasons the count was not done prior to the closing the it made it that the price would have been different had the representation that he made in the contract in arco and approximately a thousand or two thousand cylinders but that wasn't the representation the representation approximately sixty five hundred cylinders and the approximately modifier does not provide a license to provide anywhere from zero to infinity you have to get within the range of what approximately sixty five hundred on damages well i don't believe that argument even passes the smell test because i don't believe that contract can be interpreted in any way shape or form it's holding that a w g intended to pay for fifty three hundred cylinders regardless of what it receives the contract can be interpreted the only way i believe it can be interpreted in the way the district court interpreted it was that this contract was for the delivery of approximately sixty five hundred cylinders a shortfall or an overage would be charged at one hundred twenty five dollars a cylinder either way there was no cap on damages if the delivery was far but the short ball was far beyond the fifty three hundred nobody contemplated that the shortfall would be that large but it was and it had to be dealt with it was dealt with in exactly the way the contract provided provided by the one hundred twenty five dollar cylinder percival under number is exactly what the contract provided and there was no error in the district court's decision here finally i'll take a minute to address the attorney's speak claim argument that was made by the  i wish i was wrong on this i wish the prevailing party was entitled to their attorney cities in this case but the fact is the prevailing party is not under the contract there are section ten which concerns and dimwit's occasion which concerns third party claims and then there are section twelve to which governs first party claims and unfortunately in my estimation section twelve two hold that between the parties are going a w g the parties are rich responsible for their own attorneys fees in disputes over the performance of the contract which  to my client's testimony in the judge's questions to him my client was not speculating my client had records of invoices or of over six thousand cylinders that he gave to the purchase before they even closed the deal it was not speculation the the actual and i would also then emphasize this point from the brief our damages under seal proven to be all sizes shapes used and age on the damages they did not present any evidence as to what cylinders were not there nor did they present any evidence as to the value of the