words i contend that there was a crane made at the conclusion of the defendant's case district court to recover those monies you know they didn't have an affirmative claim pending there had th revisited so whether he loses because his damages were not actual or approximately cost or whether he loses because he didn't prove a breach of contract is immaterial in fact it's immaterial that he didn't present equitable subrogation as one of the you had a chance to litigate if you didn't get that money he can't go back to the well in front of judge brewster and say gee we paid that money equitable subrogation says we should give half as chance he lost was no pending claim brought by the defendant it was simply part of the closing argument which took me somewhat by surprise and he said you know by the way we've got this money being held in the registry it's been there for about ten years that ought to be distributed to my c is most fundamental sense this money that's being held in the registry derives from the very thing he meant and i did introduce into the record on appeal the evidence was presented at the state court of his payment of the mon know when you throw things to the jury and they give you a general verdict they could have done that and that's the problem you're asking us to assume what the jury did by making some assumptions and i think unless i'm missing something here i'm having a hard  quickly i said that if if successful in demonstrating a breach of contract that the jury could have no option but to determine that my client lost on those claims that he was asserting that it didn't preserve my right to present at a later time that based upon the pendency of the appeal he wanted to wait until the outcome of the appeal to rule attorneys fees issue reach brewster's findings that there was a breach of contract and that goes back to your first argument yes i understand brewster he said that because your client didn't make the payments that that little home had a right you don't have anything reserved thank you only seconds before we started argument he told us that he wanted us to address the question of what he's going to do with the forty one thousand dollars held in the registry from the sale of the boat i get i argued the docking of equitable subrogation word of damages against hold it was i got this money from the sale of the boat i got it distributed to someone to whom do i distributed it is not a claim for damages it is not an award of damages it is not money that pope who paid the forty when he went further than that i read the fine zest wire i got slipped off here because of the two proceedings i read the findings to say that he had evidence before him judge brewster that there was a breach of possession of the object the boat and what council saying on the other side is wait a minute he tried to breach of contract a state court so those are in conflict and that's where i am right now the money is irrelevant because the money procedure the possession and the and the f i b loan is pretty irrelevant too because it hadn't paid on the boat it's a question of who had the right to have the boat and deal with the mortgage let me tell you why i can say that the breach  court eight hundred seventy six this court in davis and cox versus sue the corporation and several other districts is yet another ninth circuit court cases cited in my in my brief say not only if there's any doubt it's the transcript of nine eleven as the only evidence of what i've been reading on that issue what do you say was put into evidence by mr holden relative to that issue preclusion that that judge brewster then w what was the instructions to the jury in the l a case i remember that but but but even though it's not my burden to show that you can't tell let me tell you why you can't tell now wh well what did you find your face and what was the conduct upon which you found your your life really was a defamation we don't know was it intentional question of emotional distress because of this interference with this litigation involving the stepdaughter we don't know was it malicious prosecution we don't know that that's why the special findings do nothing to clarify the inconclusive of the general verdict and i think the judge brewster struggled with that and kept fact that the owners that are breached the agreement and make monthly payments is the added expense to the punch in the nose if the guy got when the repossessed or went out to get the car is that any kinds to intentional infliction of emotional mortgagee it seems to be in that regard it seems to me that the judge proceeded on the boat and the contract which was the contract of sale for both which wrapped around the mortgage and then he proceeded  the debt tract right and your your argument has to go on that because in order to get to the money just like mrs kenyon cheney versus cain when they went to the court for the distribution of the mari i'd like to pass to mr rutledge good idea otherwise you'll have to buy lunch law was intended for that's what this is the whole forty one after six weeks of trial and a los angeles court and it's not something that we should be overturned by a distribution or a disbursement or whatever else you may call that money that money