course of conduct which was actually designed to frustrate the purpose of the agreement in a strange way for this from performing the court recognized that there was in fact in that contract as in every other contract an implied  behind this particular settlement vehicle he said based on page forty eight of his deposition which is the arm or sixty five in response to this question question well on page four the paragraph of the gears with with these changes chart i think that the documents more accurately reflect the expectations of the parties i e that craig that would be great woodward has the other qualified right to sell to longview the unqualified right to sell to longview fifty thousand b views of which of g e call to arms better than the all the of shifts previously supplied over the past several years and artificially high priced purchase price which allows him to repay the to or better than the quality equal to or better than the quality of the chips for use who supplied over the last several years at an artificially high for just price which allows you to retain if you think it's a great his grill and especially get him out of the financial hole that he found question there was no established protocol with respect to acceptance or rejection of chips other than you would like to get the chips disposed of five percent bark content as you could is that an accurate statement asked for i think the accurate statement is that our chip department work with  far under one have extended and there is time flexibility in working with no question if the chips exceed five percent you're going to try to work with the mill to get them to get as close to the five percent as they can but you still generally vitals ch there voluntarily accepted the conditions that were imposed on us by a loan farben arbitrary arbitrarily and outside the terms of the contract but nevertheless the stubborn substance of what they did the consequence of the  can't do that in my argument to judge brown into your honour's is that that misconstrues the contract that is being tsunami in this case we are suing on the settlement agreement the settlement agreement is the vehicle by which my client was supposed to have been compensated for the dismissal of the lawsuit that was pending against longview at the time that they executed the settlement agreement that lawsuit was clearly in excess of twenty million dollars judge brown denied a motion to strike  letter that was submitted in connection with this supplemental memorandum my letter which i were a part of to your honor's which put the settlement agreement in the proper context and she acknowledged that under the already statute quarter two to twenty  appropriate for the court to consider the circumstances that exist at the time that the parties enter into a contract of the cork and place itself as well as it can into the position of the parties at the time of the contract so it's inappropriate and  that the or to satisfy certain conditions of that after the agreement like a list of the personal properties safely and so forth and so on but nevertheless there still is the issue in terms of what the parties expected from that option agreement as well and the still be one certain conditions are met and it would be foolhardy for all parties to expect that mr woodward in his company was going to participate it and continue to chip affidavit and what was uncontroverted in terms of his expectation nevertheless was when he was finished shifting that he would come out they would do it environmental assessment and they would find out whether or not there was any contaminants he did that he complied with the agreement i straightforward with respect to that lot of having a good faith and fair dealing under oregon law protects the objective weak reasonable expectations of the parties to a contract and those objectives we recently expectations are just to or better than the product that was submitted previously it was accepted by your client but we we paid for all product that was tendered by prineville after the ninety nine agreement was entered into tendered in the end it was better probably i think there's a great sketchy evidence to to what the quality of the product was that preceded the ninety nine agreement although there is evidence that there was there were occasional was your client applying different standards we must have chips that meet our quality specifications our content must be kept under point eight percent now this was the year before the settlement agreement it was before the last of the initial lawsuit between the parties year it was point eight percent but in the ninety nine agreement it was a half or so and you know getting back to the organizers here is really not that different from other jurisdictions you can't be liable they performed under the chip agreement that's why we paid for all of the chips that were tendered they didn't perform adequately under the under the option agreement plaintiffs made no argument as to whether they were in material or immaterial breach it i think it's clear that they didn't forth in particular for example and i believe this was a delivery made under the ninety nine agreement their own show ever measured the bar content it very high park and levels and those were initially back and forth on that at the front end of the agreement but all ships eventually were paid for and if there was any in the line paying payment they were made with interest and there was one limited issue that the district court did not grant summary judgment on which was whether in