to be here rather than the trial court i rarely appear court of appeals level so if i misspeak or do something incorrect please yell at me we're here to argue the propriety of the gran motion for summary judgment when the trial court below there were crossbow sions and while we both agree that the facts in salient part are undisputed i'm not here to argue the fact that breach well more than it materially breeched whether or not there was a strip performance which was required because of honeywell saying well we sent out a notice of default but then they said well ok but if you make a payment by this date you're ok which was not done and then we called them and they said well if you do a payment by the state you're ok we made a payment and then they said but you've got to strictly comply with the letter agreement sent out by mr roseberry right that that one was sent to a different account yes it was and it turns out that it was did you owe money on that account as well yes money let me say it this way the money to a center that account was that more than was o on that account yes it paid off that account in full plus the total amount necessary to pay the the cure payment the installment payment of cures and i believe it was within a few days death honeywell according to the record identified that that was a and m s he had maintenance service program payment for cure in fact mr roseberry who sent out the notice of fault in october is the fact that after the notice of terminations goes out there's them on october twenty four almost ten days later another forty six thousand dollars paid and then there's another wire transfer in november two more in the vampyr and by the time we get to the end of january some three hundred ten thousand dollars has been paid to cure and honeywell's got the money now i need them to be owed anyway no no i mean if there's it still owes so at least some amounts would still have to be paid for the contract up to the point of determination assuming for this purpose as a termination was valid well actually the contract  is if you don't make the payments you don't get the maintenance done in your airplane it's not certainly not but what about me to the point of terminations to the extent this contract is something of an insurance policy the insurance was there even though payments hadn't been made on a timely basis and there's still a claim by honeywell for the amount that's due up to the point of terminations well with respect i do not believe that is correct because at that point in time we were making a claim under one of the policies for maintenance on one of our aircraft and so if that were true then they would be obligated to do the maintenance on the aircraft if you have a claim for maintenance prior to the date of terminations announced by honeywell and that's a claim that i can pursue because  my point is that if you're going to insist upon a terminations date because of non payment then you cannot they're after or even during the terminations period except payments and continue to accept them and not give them back you could have the money to do so but the money was not due here that's the point that's really prompted the question i had trouble figuring out exactly what money was due and what money wasn't up to the point of germination as i said my review of the contract left me with the impression that payments were being made when i described it in the rear is based on hours of operation well that is correct but if you don't operate the aircraft then you don't owe the money and these are not already and terminates but if money is still owing money comes in there and if i've rented apartment to somebody and they still owe the round they still only the money even if they didn't pay me and they get tossed out they still only for that time if i get money from them i can apply it to the devil it's what people used to carry deposits for well so so i'm hearing you say what we think money and they took it and give it back so i don't have anything in front of me that tells me that they were required to give it back well of course we don't have anything because there is nothing in the record that indicates anything beyond the catch it being that's was do well and if there's nothing in the record to that effect i mean so well here's here's my response well let me make sure i'm asking the question answering what i'm asking i thought i heard you arguing that they were accepting money after the terminations date that was future money rather than past d money but i'm not sure that's right that is to say are we dealing with money that according to honeywell's calculation was due based upon the termination that honeywell insists on that assumes this past new money no then why are you claiming for that in this deal now even on the assumption that you lose on the terminations question then you a little use the money back why are you claiming for that that claim was indeed asserted after trial of all and that kate that claim was dismissed as because of the summary judgment but if that claim was dismissed based upon the terminations and that money was old let me let me just hold right there and let me go to something else that i think is very germane to the you honeywell itself admits that under the terms of this contract if it wasn't terminated if it was terminated as of late january  owed us a refund of virtually three hundred thousand dollars they understood as did we that the payments were made for maintenance and you could at any time under disagreement stop making payments the only thing that you lost if you did that was the ability to have honeywell there after pay from the me on the engines this is  program that you have this does not obligate you to pay honeywell because hein wells remedy is you're not current we're not going to pay we're not going to do the maintenance  indeed honeywell's modus operandi in circumstances like this was that as we know from the record something like fifty percent of all people who have these types of contracts are delinquent when they take the plane in for maintenance and they simply catch up on the payments then honeywell pays for the maintenance and so this is not your typical renting an apartment situation where your respective of what happened you are obligated to pay the payment know this years if you want the maintenance you have to make these payments and then we will pay for it it is not it was in service and therefore you must pay for it the salient point to me i have to tell you more do an insurance policy and saying after the fact well we didn't have an accident so i don't need to pay for the insurance up to the point of terminations is not to me a very persuasive argument i just after the point of terminations since your client had the power clearly have the contractual power to force honeywell to pay for claims prior to that date the notion that says you're insisting it's not terminate the notion you can decide to walk away from an obligation up to that date is not on its face strikes me as very persuasive and certainly that was not our position our position was that we had in the green light that they were working with us and we with them to bring ourselves current so that they would pay for the maintenance on our aircraft and that's what we were doing and they were accepting those payments and even after they purported to terminate they kept our money and there is right now some hundred thousand two hundred seventy nine thousand which reversed you're just walking away from that money there is nothing left of our claim for that money it was dismissed now that doesn't make any sense to me it makes no sense to me i don't know your argument doesn't make any sense to me that is to say  terminations was proper and you lose on that ground i think you're telling me the oh you actually amount of dollars because this was paid for obligations after the terminations yes but you're not claiming for that they're walking you've left whatever hundred thousand dollars on the table yes ok don't want to work but you had a choice agreement for a repayment schedule but let me ask you what happens right after that because i think if honeywell that cut him off right there would have stood out a pretty clean record but it didn't stop there there was subs point to that order but in the end of july honeywell sends the default letter this wasn't the first time sakit sakit received a letter like that august sixth mr rose very honeywell sounds a letter saying you're in the fall we're going to terminate this contract at the end of august we will postpone determination if we can reach agreement on some catch up payments and just clicked in your comment was correctly right this was money that was already over sixty days due and owing and he laid out  it did after that date in other words it's right accrued on august twenty second and nothing nothing happened after that date that extinguished its absolute right to terminate the contract well we may have a waiver if they're  being allowed to go ahead and makes up some good payments why is that a waiver ok let's let's talk about that reason it's not a waiver and i think it's important to walk through the facts but it's clearly not a waiver honeywell agreed to postpone at that time and said if payments are made now the payments were made ok so that honeywell is right never one way honeywell did agree to accept the first two payments slightly later then  schedule but honeywell said look the first and second payment will postpone those but you have to stick to this payment schedule and they reiterated that and the last one last communication is on september twenty fifth an e mail from honeywell to saks that says look the third or fourth payments have to be made on time or we will terminate and that communication was more than occurred more than ten days before crude well was insisting on its rights throughout this process and kept insisting that the payments we meet on time only the only only concession honeywell made was with respect to the first two payments in mr rosebery letter there was no agreement to postpone the third payment and there was no agreement on the fourth payment and before the deadline of the third payment honeywell reiterated in writing to saxa you have to strictly comply with this date or we will terminate the contract that e mail went out ten days more than ten days was fifteen agreement this is the this is the kind of situation you know i was trying to work with the customer but i had the absolute right and the terms of its agreement to cancel the contract as of that day are you arguing that they might have waived by allowing the extension in august but it was a conditional waiver the condition of the waiver in the end was not fulfilled in our view there was no way for what but i think what if what if what if i think there  was if we assume there was a waiver i think that's another an alternative analysis if we assume arguing no that there was a waiver yeah absolutely i mean another way to look at this sort of another simple way to look at this is what honeywell said is all this money  have until you have until october fifteenth to pay all the money that's passed into knowing that doesn't happen and before that date more than ten days in advance honeywell says if it's not paid if these payment dates are met we're going to sacked wires into a honeywell general account several payments that totaled several hundred thousand dollars honeywell of course has a business with sacks in their parts department the mexican government and apparently the mexican government under mexican law can't directly make payments to a u s company so the sax goes well was the one who was responsible for  honeywell post this money to these other accounts so what this money that was paid it was a it was paid after the contract that was was in default honeywell asked stacks of what to do with that if you look in the supplemental are supplemental of record you'll see this correspondence where honeywell saying we're going to send this we're going to write you a check for this money and then there's correspondence saying no no appeared to these other accounts long story short honeywell never posted it to the m s p account never accepted it supports yours that there was a default and then they would have an agreement and they would either pay current before the due date or they would have an agreement to make payments we believe i understood was that what the district court found was the first time  that the agreement or the payment hadn't been reached prior to the termination date well we leave that the agreement had been made and the best evidence of that agreement the agreement was that we would be making time payments and paying them overtime and they were accepting them and with the schedule this was the aug twenty two terminations if they proposed the schedule which i have never accepted that is correct what was accepted well what was accepted was the subsequent emails and phone calls between  parties where they said ok if you make a payment by the state you're ok even the last payment on september twenty seventh where ms clark said ok if you make it next week you're ok and in fact we did she didn't think we did and so she suggested showing an intent to pay and bring current they never defaulted these things you have to read there in the context of what the intent of the parties was with these payments intent being an intensely factual issue which cannot be resolved on a summary judgement hold the money for other companies there is a factual speak about that in the record because the record shows that they could take about one hundred