- 22 - requiring quarterly payments, and neither of the other trustees testified at trial. Moreover, unlike the Texas cases, each of which involves distinct contractual parties with competing interests, in this case, petitioner acted as both administrator of the plan, trustee of the plan trust, and participant-borrower. Petitioner's unilateral failure to demand payment from himself under the circumstances presented in this case is not sufficient, by itself, to evidence mutual assent between two parties to modify the terms of the notes. Furthermore, petitioners do not attempt to show at exactly what point the plan's failure to demand payment constituted a modification of the loans. Based on the cases petitioners cite, any modification that might have occurred presumably would have taken place after sufficient time passed to create a "regular course of dealing." Even if we accept petitioners' argument that the notes were modified by a regular course of dealing, petitioners have not shown any factual basis on which to find that thePage: Previous 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 Next
Last modified: May 25, 2011