Fisher Sand & Gravel Co. v. Neal A Sweebe, Inc.
293 Mich. App. 66
| Mich. Ct. App. | 2011Background
- Fisher provided concrete supplies to Sweebe from Oct 1991 to Oct 2004 and issued periodic invoices with payments by Sweebe.
- On May 9, 2005, Fisher invoiced Sweebe for $152.98; Sweebe paid $152.98 on May 13, 2005, last payment.
- Fisher filed suit on Aug 13, 2009 asserting breach of contract, account stated, unjust enrichment, and amount owed on open account.
- Defendant moved for summary disposition arguing the four-year UCC limitation (MCL 440.2725) applied, not the six-year general contract limit (MCL 600.5807(8)).
- Trial court held the four-year UCC limitation applied since the open account related to sale of goods, granting summary disposition.
- Appellate court affirmance held the action fell under UCC § 2725 four-year period since accrual and last payment occurred in 2005, more than four years before suit.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Which limitations period applies? | Open account tied to sale of goods is governed by four-year UCC period. | Open account related to sale of goods falls under six-year contract period. | UCC four-year period applies; action untimely. |
| Does accrual occur at last payment date on open account? | Accrual may be later or separate from underlying contract. | Accrual coincides with last item proven; May 13, 2005 is accrual date. | Accrual date is last payment; action filed 2009 is untimely under four-year period. |
| Is open account treated as a distinct contract from the sale of goods for limitations purposes? | Open account constitutes a separate obligation from underlying sale. | Open account exists to facilitate sale; related to the sale of goods; UCC applies. | Open account related to sale of goods falls under UCC, not a separate six-year contract action. |
Key Cases Cited
- First of America Bank v Thompson, 217 Mich App 581; 552 NW2d 516 (1996) (deficiency action linked to sale of goods governed by four-year UCC limit)
- Moorman Mfg Co of California, Inc v Hall, 113 Or App 30; 830 P2d 606 (1992) (UCC-based limitations precedent across jurisdictions)
- Edwards v. Hoevet, 185 Or 284; 200 P.2d 955 (1949) (account-related liability linked to underlying sale of goods)
- Collateral Liquidation, Inc v Palm, 296 Mich 702; 296 NW2d 846 (1941) (open/account and new obligation discussion pre-UCC framework)
- Bonga v Bloomer, 14 Mich App 315; 165 NW2d 487 (1968) (open account payments and underlying contract considerations)
- Donkers v Kovach, 277 Mich App 366; 745 NW2d 154 (2007) (parity of related statutory interpretations in open-account context)
- Thompson, 217 Mich App 581, 217 Mich App 581; 552 NW2d 516 (1996) (defendant cited in analysis re UCC vs contract limitations)