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Petitioner acknowledges that the Letters defer payment until
adequate funding can be obtained. Petitioner argues, however,
that the Letters represent only outlines of employment contracts
that In Touch might execute in the future and do not represent a
complete statement of the rights and obligations between the
consultants and In Touch. Moreover, petitioner contends that the
Letters do not refer to any consulting work performed before the
finalization of an employment agreement and that no contingency
or deferral exists as to liabilities due for past services.
Petitioner argues that the consultants invoiced In Touch for the
services they rendered, and In Touch responded by issuing
promissory notes as payment. These notes, petitioner believes,
clearly reflect that the amounts claimed are fixed and
immediately payable.
Petitioner’s arguments are not supported by the record. In
Touch did not have the necessary funds to pay the consultants.
According to the only consultant who testified at trial, a
representative of In Touch told him that he would be paid once In
Touch was financially capable of doing so. In reliance on this
statement, the consultant did not send any invoices to In Touch
for the service he rendered. The consultant also testified that
he did not receive the executed original of In Touch’s promissory
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