oh well that's an argument that wasn't raised in the trial court and i will frankly mature honors that it's not one they had i considered in preparing this appeal speaking of arguments that were not  argument in the trial court that clearly emphasised the fact that these pardons he had been here to apprentice regarding the payment of expenses for the residents th suggested the terms that bigger was given the time frame that's gone by twenty in the twenty five years well correct that argument of the wife is that the provision is in big wigs however if that is true that everything in article six expire on april first in one nine hundred ninety three then in fact everything that happened afterwards was really an agreement by the parties to modify the terms of the correct i mean once the language is also me and tory in the section but at the time prior to april first correct and there is mandatory language that the property shelby two conclusions i think there's been some reaching this contract for instance by somebody asking for a deed or e s p n for a listing or something of the ad nature in the other party refusing to abide by the contract the wife asked for it quickly deed which did a roundabout way so a petition for specific performance as opposed to merely selling the house and giving him the money or the proceeds that she thinks he's  allege that there was a conversation in this in this conversation there was an agreement that she could maintain possession of the premises it was the husband's the court two of the testimony the suggestion that the children the girls continue to live in the home we thought that would be best for the girls correct correct but i don't think that the test i don't think that the testimony is is completely an appeal at this time and and then gets down to the bottom line question of whether when they disregarded the timing for such a listing for that written agreements may be modified by subsequent oral agreement in that they can be modified here as to just a single term or certain terms with they may be modified if there's partial performance or complete performance but where was the youngest trial emancipate eighteen years old well the testimony was i believe that the youngest child was two indicate that the agreement was necessarily tied to the kitchen children still being in their minority or still being resident in the home it is the testimony as i understood  simply to the effect that the issue of the way for many in the house came up the agreement was that it would be good for her to stay in the house you know for the children and that was the end of the quantity fons correct which he could have done whatever he chose to do with correct and it you know when there's a discussion in the briefs about you know the vantage issue because mr debate sure he has an advantage because while he may assume that he's going to make some profit and that each of them are going to get something out of the sale of this home it is not something still is and if you know your premise is false then your conclusion is false and if your premise is false and that is that there is an ambiguity and the contract is fix most of which were in my stipulation to the tune of the white hipping made all of these subpoenas the into the title not having been changed over the years i mean those well you say even if it's an undisputed fact when you argue that the facts the undisputed facts did not cancel or go or modify well i think that th is the legal conclusion that these i think the undisputed they ask leading to the legal conclusion that there wasn't a cancellation or a modification i'm not so well he didn't come in and file a petition for a rule and say you're in contempt you will miss this house for sale other than that and and i didn't she other than  wouldn't make any difference if this was two years after ninety three like ninety five instead of twenty or twenty four years or whatever well i don't certainly wouldn't argue against it if she asked for a deal from him for him to sign over her rights or she could sell the house was what was the consideration offered for that is that what we're about here i guess and if she offered him fifty percent of what the house is worth today no credit he said ok i was just basically what he's asking for now well i would assume so but of course sure also requested credits for is entitle to nothing at all other than fifty percent of what's left after all he's not entitled the interest on the money he could have and would have received in ninety three no because it think he was in fifty three times roughly so she was paid three thousand dollars a year in tax i think it's fair makes clear that they are those agreements should be enforced as a matter of law and that they are not susceptible to lead to termination unjustly enrich the courts use language for unjust enrichment as a benefit that violence and justice equity in good conscience westheime test the expenses for property to possession of the property and the current case teaches that you don't necessarily get reimbursed when you have had use of the property so given their history in just lucian cases there could never be a finding of unjust enrichment of in this case in the us for the remedy of constructive tru place and the reason i believe the conversation took place is again of the in action by the part of the pardons mr de berenger didn't do anything to try to put the money he now says he's due to do so that tells me that the conversation did take place and he was