Blog

LITIGATION 6: The terms of the agreement prevails over the course of performance.

This case arises from a contract dispute between plaintiff and defendant. The parties dispute not whether defendant is contractually obligated to pay plaintiff for certain purchases it made from plaintiff, but rather when that payment was due.

In the 10 years preceding this lawsuit, defendant purchased numerous technology products from plaintiff. Defendant’s purchases from plaintiff were commemorated through purchase orders and corresponding invoices. The purchase orders and invoices identified the products purchased and the price, and each invoice indicated that the payment term was net 45, which the parties agree means 45 days, and also included the statement that a service charge at the rate of 1.5% per month (18% per annum) will be charged on all accounts past due. Any account over 60 days from the date of invoice will be automatically placed on credit hold. But according to defendant, this provision of the parties’ agreement was never enforced.

According to defendant, plaintiff would send defendant an invoice when delivering the goods to defendant, and defendant would pay plaintiff after defendant performed an account reconciliation process, which would take anywhere from 67 days to 390 days from the date the invoice was issued. Defendant contends that despite the contract language, plaintiff never considered such payments late and never placed a credit hold on defendant regardless of when defendant paid.

The parties do not dispute that between July 13, 2016, and January 30, 2017, defendant purchased numerous products from plaintiff. According to plaintiff’s complaint, the amount of defendant’s purchases from plaintiff during this period was $490,039.94. Plaintiff contends that although it sent defendant a balance statement reflecting the transactions between July 13, 2016, and January 30, 2017, defendant failed to pay plaintiff.

Plaintiff initiated action against defendant, alleging breach of contract, account stated, and unjust enrichment. Plaintiff moved for summary disposition under MCR 2.116(C)(10), arguing that there was no genuine issue of material fact regarding defendant’s failure to pay plaintiff.

The trial court determined that under the UCC, the express terms of the parties’ agreements prevailed over the course of their performance and course of dealing. Although a course of performance may show that parties have waived a specific contractual term under MCL 440.1303(6), the statute does not similarly provide that a course of dealing may demonstrate waiver.

Although the parties may have developed a course of dealing over their 10-year business relationship in which defendant never tendered payment within 45 days from the issuance of an invoice, MCL 440.1303(5)(a) nonetheless dictates that the 45-day payment term prevails over any course of dealing. Any modification of that term must satisfy the statute of frauds. MCL 440.2209(3). Here, no such written modification exists, and the statute of frauds therefore bars defendant’s argument that plaintiff modified the 45-day payment term.

If you are a business owner facing litigation, obtaining the right legal representation is essential.

At Aldrich Legal Services, you will work with an attorney who has the extensive litigation experience necessary to help you reach an effective resolution that protects your interests.

Contact Aldrich Legal Services

REAL ESTATE 36: Plaintiff argued that her claim was not time-barred because it did not accrue until the grandmother’s death.

Plaintiff’s interest in the subject property is best characterized as a remainder estate, because her right to possession of the property was postponed until the occurrence of a specific contingency, that being the deaths of the grandparents. Plaintiff pursued this action within the 15-year limitation period; accordingly, this action is not barred by MCL 600.5801(4).

PROBATE 27: Petitioner filed a petition for mental-health treatment.

In support of the allegations, petitioner attached clinical certificates from a physician and a psychiatrist who observed respondent at the hospital. Both doctors diagnosed respondent with bipolar disorder, determined that she displayed a likelihood of injuring herself and that she did not understand the need for treatment, and recommended a course of treatment that consisted of 60 days of hospitalization and 90 days of outpatient care.

5 Things Everyone Should Do Before Starting a Business

So, you have a great idea and the experience to back it up. You are in a great starting place, but you have some work to do before jumping into forming your own business. Consider the following steps before you begin the process of starting your...

FAMILY LAW 32: Trial court committed error in failing to address whether there was an established custodial environment.

On appeal, plaintiff argues that the trial court failed to make any findings regarding (1) the child’s established custodial environment, (2) the child’s best interests regarding the grant of primary physical custody to defendant, (3) the child’s best interests with respect to parenting time, and (4) the child’s best interests pertaining to the parties’ dispute over daycare.

PROBATE 25: Daughter removed as personal representative of the estate.

the probate court determined that Daughter J had managed the estate in a manner that promoted her own interests as a beneficiary over the interests of the estate. The probate court found that such management demonstrated mismanagement of the estate and that removal of Daughter J was therefore in the best interests of the estate.

4 Last Minute Ways to Avoid Foreclosure

One tough break seems to lead to another. If you get behind on mortgage payments, you could be in danger of having your house foreclosed upon by the bank. Lenders foreclose on real estate to recoup their losses. But this means you won’t have a...

5 Necessary Sections Your Prenuptial Agreement Needs

Many big decisions come with getting engaged. Planning for marriage can be exciting and romantic, although the thought of adding a prenuptial agreement may not stoke your passion, they can help you now and in the future. Prenuptial agreements are...

REAL ESTATE 32: Plaintiffs and defendants executed a second easement.

Plaintiffs requested that the trial court, either through reformation of the First Easement or interpretation of the Second Easement, quiet title in favor of plaintiffs and declare them to be the owners of an easement to access Lake Superior through the ravine on defendants’ property, enjoin defendants from interfering with their use of the easement, and order compensation for damages to the stairs.

LITIGATION 4: Plaintiff claimed installation of hardwood flooring breached the condo bylaws.

Defendants completed the project. Plaintiff did not pay for any of the costs of the project. Defendants moved to compel plaintiff to pay one-half of the costs under the agreement. Plaintiff responded that defendants had materially breached the agreement in several ways, including by denying her the right to supervise the project, by refusing to give her an installation schedule, and by starting work before plaintiff approved of the start date.

FAMILY LAW 30: Discretionary trust assets cannot be reached to satisfy claims for child support and alimony.

The key difference between discretionary trusts, support trusts, and spendthrift trusts is that creditors cannot compel the trustee of a discretionary trust to pay any part of the income or principal in order that the creditors may be paid. The opposite is true of spendthrift and support trusts, which allow trust assets to be reached to satisfy creditors, including creditors seeking to satisfy claims for child support and alimony.

An Easy Guide to Navigate the Probate Process

Families can help each other through life’s toughest moments. However, issues come up when the strain of losing a loved one combines with the stress of honoring their last wishes. Probate protects beneficiaries best interests. Though...

Top 3 Misconceptions on Power of Attorney

Considering leaving the country for a long time while maintaining a business or selling a home in the US? Were you recently diagnosed with a terminal or degenerative disease? For these and many other issues, it may become necessary for someone...

FAMILY LAW 29: Quitclaim deed signed after prenuptial agreement prevails.

The court ruled that title to the land prevails and that once the deed was signed, the property became the undivided whole interest for both the decedent and appellee and became appellee’s property upon the decedent’s death. Consequently, the court concluded that the prenuptial agreement did not have any impact on the property rights of appellee in this case.

Know the Differences between Annulment and Divorce

  Marriage can end through two ways: divorce and annulment. Though both of these options have the same result, each has different requirements. There are many similarities and differences between a divorce and an annulment, so many...

Understanding Vaping Laws for Minors

  Vaping is a fad that is quickly solidifying into a stable industry of products around the world. Vaping and electronic cigarette (or e-cigarette) use have dramatically increased from roughly “seven million [users] in 2011 to 35...

Don't let a bad decision, unfair contract, or a messy divorce get in the way of a promising future!
Contact the experienced team at Aldrich Legal Services today to schedule your free initial
consultation
and secure reliable and trustworthy representation today!
Get the Help You Need From a Team You Can Truly Count On: (734) 404-3000
734-237-6482