contracts in place and we and we would already there still no written contract in place at all you mean that piece of paper that has the name of this is not a yes or if the court will allow me out but we have to examine that and go into the modern rulebook so first of all ok we have seven tanks on the farm when we found this complaint we allays a breach of contract we did not allege a breach of a written contract our client was not even aware of these written contracts until defense counsel filed an answer in a ta rate contract if you look at their first answer it referred to a serial number how could that be if the sun signed the agreement how could what be about how could how can it be that your client wasn't aware of the written contract if the son meant the son was the farm manager right so he was presented to the this report and i guess your argument is he didn't have authority either a parent or otherwise but i do but if you allow me i want to point out one other thing the first contract that was found in the original insured relates to a most important part of the contract which way the right to recover consequential d d s and most importantly the contract if you're referring to is not contests in question of this lawsuit that contracting the originators d d x one eight one four that is not a tank that's th of this litigation and the four contracts that defense counsel attached to their amended complaint only one of those four contracts applies to a claim of the time that we're claiming damages for and coincidentally ironically that particular tank that we're saying it was damaged is our least amount of damage because it only had seen it the crux of our damages in our case dealing are dealing with embryos the fan says offer no written contracts for any of our three tanks they have and that's where the entire damages are in this case there's simply no contract that's been signed that defense counsel can produce nor that we can file their written contract resistance for it well then so let's assume that's correct but then i guess you need to go back to their request for whether iraq tours answered that it was customary to be to give sixty days notice before reaching and also that it was an inadvertent error that they didn't give sixty days notice in this case money t yes sir and that's exactly what you would not look at that tape erotically to make sure that millions of dollars of being secure it well judge what i'm saying is icons didn't monitor the tanks if you actually opened up the container that let that's the standard for inspection during the offseason i do that at least think that's a jury question at the very minimum what is that looking at them from the mouth that tells you if they're defective the see condensation and these are all matched to avoid any damage from the from the senate floor so their own own massive intime station you see the condensation on the tanks here that was not the case so therefore our client relied on dollars thirty first term a nation that was sent to them september seventeenth and our client says in his deposition had i known that it was field you are thirteenth i would have checked before because he quoted the timing he says that his deposition so he detrimental relied on their you don't have to do an extensive amp or because he lied he relied on what gen x provided him they provided him a letter and said hey we feel your take so we're leaving this territorial service area but you're going to go but we did your august thirty first two thousand and fifteen obviously he didn't do it between july thirteenth and october whenever he inspected those tanks he only inspected them outside visually so july you got what you live on this september service you do not and there's no testimony in the record that other farmers or other experts inspected the tanks by going inside the tanks probably do now belt well if they had their fleet they would  case may be but if it says july thirteenth is a flag it may not be of use a lot of you know if you've got millions of dollars you go check that thing out and you end it with a fifteen year relationship you are respectfully if you're getting bil the tanks are defective and that right inside of twelve week right here our plants knew they had good tanks they've been inspected since this lawsuit was an active since this claim was made and there are good tanks are new hey i have good tanks they sent me a bill means the gas is going to dissipate more frequently outside a season they tried not to on purpose go in the tanks because that helps deplete the fleet see it's it's a catch twenty two tickets and it's a double edged sword to go inside the tanks outside of season because all right thank you thank you there are three she's in this case and you all focus primarily on the most heard one which is mr edwards or mr failure to monitor these tanks and there says the city has a no contract so there are written contracts which were the answer all the witnesses were questioned about them during the course of discovery they were designed doesn't pertain to use the civic tanks that were involved here this were only damages go well i think then if if that were correct we would have a course of dealing argument based on the terms of the written contracts which have governed your party's actions only first is it correct i would have to go back i think several of the serial numbers for the contracts were going to go down if they raised not until the summary judgment stage similarly they didn't raise the issue of the lack of a written contract until after discovery closed we were aware that they were taking the position this was an oral contract until after we finished all the discovery which is a real problem because we would have talked to the witnesses about that nevertheless let's say it is an oral contract they received written notice of cancellation which dexter edwards acknowledged receiving in september that's it that's the end of the relationship of these parties the last doesn't occur until mid october so if there is an oral contract which there is not there are written contracts which govern these are these terms in the country ended a month before the last while but if the breach occurred before the contract and it doesn't i mean the time when or for me anyway so the the evidence is uncontroverted corey peters testified that he was absolutely certain that he filled those tanks on schedule on july the thirteenth of two thousand and fifteen that's in his sworn testimony he gave them two separate pieces of evidence on that day he did so want he filled out the pay on the side of the tank and second he left a receipt on nicholas edwards desk showing that he had done so now mr edwards didn't keep the receipt so we don't have discovery but mr peters testified those are the two things he did then he went back into this state in the computer and that's where the clerical error comes in where the bill isn't generated for about another month and a half that's not a breach of contract that they received the product that they paid for they paid for that product ok when when this lawsuit started judge p s one the first things we did was they used the word negligence in the first point and we made a twelve six motion and we said this is a contract between the parties under the port authority line of cases if you have a contractual relationship the terms of the contract govern the relationship you don't have in it which is quite clear and in response the plaintiff said we are not making any form of negligence claim our sole claim for really is breach of contract what they're saying to you simple clerical computer data entry error which is the testimony of the folks from genetics when they went to wisconsin and opposed all my clients they ask them all how did this happen what was the nature of this mistake and they received testimony from the witnesses that this was a  treat clerical error committed not by mr peters but by the folks back in wisconsin so to breach it gave you good pay we would have to act in bad faith and we did not do so there is no evidence in the forecast of the evidence by the plaintiff before judge  and that and you failed to do that and that's the breach of contract what your response to it is just wrong that takes our field every three months the three month window to fill those tanks was july the thirteenth when it was done if we would have way to tell august thirty first to fill the tanks they would have an empty at the time they were filled then so they schedule their regular schedule for the filling of the stand this was a schedule that had been going on for how long there are safeguards built into the system both there is in the original contractual language it says customer says full and sole responsibility to maintain ellen to biased and good are a condition to monitor contract there's an analysis they if there's not a contract it is the oral contract that we're talking about right so the problem with an oral contract is multifold one there was no meeting of the minds there was no questioning of my people wasn't then then the second question is was they had oral contract if there was an oral contract it was bound it was under the terms of the written contract because those are i don't want to miss orders i want to make sure you are not speaking the same communicate and the first  is either there's a contract one not a contract yes or you there was a written contract one or contract yes or you say if there was not a written contract you're not saying there was a contract are you saying there was an oral contract yes pursuant to the exact same terms as the written contract which governed the parties course of dealings for eleven years that's how we did business with them those were the terms we did this is with them under you have to understand they're making this claim saying they had millions of dollars of pro this is ellen to thirty bucks a tank it's two hundred ten dollars for the total service call that we're talking about here there is no way on earth that gen x or anybody in this industry is going to guarantee these folks millions of dollars of product for a two hundred dollars supply run without having safeguards in those cigars include the duty of the farmer to routinely monitor there is absolutely testimony in the record or a trivial breach and we you know that i'll rely on the crew for those are going to leave your hands but we've also under any scenario you know there's a there's a green neon green sticker on all those tanks that's in evidence that tells them you have to check these you have to monitor these in the way you monitor them if you take them with a stick a ruler a blacktip stick ruler and then you check it right ok so what's it like to that your mr thompson got up and said well that's in dispute because depends on whether or not it's been in the breeding season or not if it's outside of the breeding season we have a sort of a mist duty to monitor which simply requires that you look at the exterior of the tank there see if there's condensation present in the record he's conflating the issue of an outright failure of the tank and the substance naturally degrading over the window of time you have to fill these things every three months no matter what whether the tank is failing or not what he's talking ma'am and that's from the testimony of their expert and it's in the record there's a difference and like i said you can place the two issues the substance naturally expires and i think it's called supplementation is the physical concept the scientific name for whatever but the this is super cool gas as it warms it turns into vapor and leaves right and so that doesn't last that's why it has to be refilled every three months regardless of whether the tanks are failing ok so mr edwards our people only go out there every three months mr edwards is they are every day his son is there as suit their it doesn't matter whether it's breeding season are not meeting season away faster they can call for a refill one of the things that they've raised and we can talk about briefly is this issue of oppression in the contract and and against public policy when that they were low on the school when he called somebody and there's somebody there that day this is something you can buy from lots of vendors they have a vendor now who testified in this case so it's not as if my client had a corner on the market and they couldn't choose other terms other than the terms that we agreed to with they had lots of options they had an option that day it's not you know there wasn't any surely just this product or difficulties obtain so our position is that the terms of the written agreement which it govern the relationship between args are the terms even if you say the tanks that the as they replaced tanks with age and the wear out that's still how we operated with those are the terms we agreed upon with them if they were going to raise this issue of there being some other set of terms an oral agreement then we need to know that during the discovery when we need to talk to witnesses about it is not appropriate to wait till after the close of discovery and challenge the existence of these terms so the other thing that they raised is this issue of chapter seventy five and that's pretty clear in the brief in order to have a reach a contract or even an intentional breach of contract is not a chapter seventy five claim under north carolina law a notable judge diaz a judge when and when they were on the bench in north carolina dealt with that issue to routine claim that gets made but you have to have some egregious conduct some really deceptive unfair carla and the only evidence in this case is that there was a clerical error in the billing department genetics in china wisconsin if the point that other evidence to say we did something egregious other than this one clerical error they had an opportunity to present to court during a scary and they did not do so in the last thing i'd like to hit on and then i'll be happy to answer any questions you m have is there is a general causation here if dexter edwards had checked those tanks at any time that after he got that cancellation letter he would have realized the court was becoming low and this thing wouldn't happen that's his duty whether you call it a common law duty of negligence it's his property it is his responsibility to do that he failed to do so his son testified and i can push you to section happen doesn't need to happen it's such a simple thing for them to do and the reason is their duty to do that they're the ones that are there so the contract there was a  less settlement thirty that mean you obligation ran until like over to sixteen so now it's are there all the letter itself says unequivocally that the contract is terminated at that point if they wanted to make a claim and said hey we incur additional cost because we were under the rock so you have to give sixty days notification it does so was a sixty it didn't happen you're right judge wow because they pulled entirely out of the state of north they give you six today those correct they did not give them the sixty days notice what i would say in response is if they had a claim saying we incur additional cost or we couldn't find a supplier because he didn't give us enough time then that would be a claim that's not what less they don't base any damages on that claim that's not the gist of their claim here no matter how you slice it they knew that we were not coming back out they have been told in writing and they've knowledge you see it so they had an obligation to do two things one by obligations right till november sixteenth would you not have had an obligation to feel that time again for eight months after june or whenever july thirteenth in before nov sixteenth if we had agreed to continue doing business with them the tanks would have been filled my question my question deals with those determinations knows the term nation says that you and that you have sixty days before you can terminate this  sixteen b look it was so i know he's got someone over sixty because you have an obligation in between to feel at times we ended the contract as of the date of cancellation i do not agree the contract continued there's nothing the cancellation notice which indicated but you also acknowledged you head to give sixty day those to terminate the contract and you did not give sixty days notice true and the question is if you didn't give six today knows when did the well you know because not a written contract isn't all contract except there's nothing there's no sixty day period in an oral contract if you accept misleading you ought to be saying is not a written contract if you said mr thompson's premise the contract is terminable it will under north carolina law and it was so if you have the other i guess the other issue there was if there is a written contract and all the blows from judgments questions about brooch that contract also has an expressway we're consequential damage so i don't know that that gets them anywhere it absolutely does and it gets back to the the baseline reason that we put that in there because you're talking about thirty dollars worth of product supposedly here in teaching a six million dollar loss we begin contract on a puter time so we not only is it in the written agreement there's a big sticker on the tank that tells them so even if they say sometimes you didn't have the dates of the right stuff that's the tag there's a big neon green sticker that's in evidence prospective i want you to dress it up from the perspective that did you have an opportunity to discover the truth stop him could you could lose that you have that if that's available that to eat i understand you lifting them up and checking the weight of the tank yes i said wouldn't that show if there was a drop in the nitrogen substantial differences in the weight if they had done that thanks actually you know how does that help you if they didn't do that  without being somebody they had to say ok here we see you here you may just sort of ignore them but somebody is there i would think it is not it is not going to happen at twelve o'clock at night when everybody is sleeping and they came in did it nobody in  nonetheless if that's the kind of what was going on i'm just trying to determine what it takes of being feel were you there i did i mean not necessarily to answer your question and that when the times when we and we do know