Summary
affirming summary judgment granted to defendant who was one day late on a payment; where no material damage to plaintiff, the delay was de minimis and the contract was substantially performed
Summary of this case from Jenkins v. U.S.A. Foods, Inc.Opinion
Docket No. 48562.
Decided August 27, 1980.
Alan G. Greenberg, P.C., for plaintiff.
Clark, Klein Beaumont (by Richard C. Marsh and Charles D. Bavol), for defendant.
Plaintiff sued to recover on a construction contract. Defendant moved for summary judgment on the basis that an accord and satisfaction between the parties had dissolved defendant's liability under the original contract. The lower court granted defendant's motion.
It should first be noted that defendant's motion should have been for accelerated judgment pursuant to GCR 1963, 116.1(5). Since neither party would appear to have been prejudiced by the mislabeling of defendant's motion, we shall address the issues raised as though the proper motion had been filed. Unger v Forest Home Twp, 65 Mich. App. 614; 237 N.W.2d 582 (1975).
Plaintiff agreed to settle the disputed amount owed by defendant for $42,549. According to an exhibit submitted by plaintiff, this amount was to be sent to plaintiff by July 5, 1978. Another of the plaintiff's exhibits indicated that plaintiff received defendant's payment on July 6, 1978.
On appeal, plaintiff contends that time was of the essence and that the accord and satisfaction was, therefore, not adequately performed by defendant. We disagree. Plaintiff conceded reaching an accord and that no material damage was done by a one-day delay. In this circumstance, we find the one-day delay de minimus and affirm the lower court.
An accord and satisfaction is, in essence, a contract. Puett v Walker, 332 Mich. 117; 50 N.W.2d 740 (1952), Fritz v Marantette, 404 Mich. 329; 273 N.W.2d 425 (1978), reh den 406 Mich. 1103 (1979). A delay of only one day, where the delay admittedly causes no detriment, amounts to substantial performance of an accord and satisfaction contract. Cf. Antonoff v Basso, 347 Mich. 18; 78 N.W.2d 604 (1956), Gordon v Great Lakes Bowling Corp, 18 Mich. App. 358; 171 N.W.2d 225 (1969). On the facts of this case, plaintiff's argument that time was of the essence does not change this result. Bilandzija v Shilts, 334 Mich. 421; 54 N.W.2d 705 (1952).
Affirmed.