99 Mich. App. 669 | Mich. Ct. App. | 1980
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 NW2d 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
An accord and satisfaction is, in essence, a contract. Puett v Walker, 332 Mich 117; 50 NW2d 740 (1952), Fritz v Marantette, 404 Mich 329; 273 NW2d 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 NW2d 604 (1956), Gordon v Great Lakes Bowling Corp, 18 Mich App 358; 171 NW2d 225 (1969). On the facts of this case, plaintiffs argument that time was of the essence does not change this result. Bilandzija v Shilts, 334 Mich 421; 54 NW2d 705 (1952).
Affirmed.