In these consolidated appeals, plaintiff Adell Broadcasting Corporation, doing business as WADL TV 38, appeals by leave granted the trial court’s *8 opinions and orders granting partial summary disposition for defendants on their сounterclaim for rescission and denying plaintiffs motion for reconsideration. We reverse.
Between 1993 and 2002, defendant Apex Media Sales, Inc. (AMS), was plaintiffs exclusive media representative for national religious and sеcular broadcast spot and program sales. Several months before the parties ended their relationship, Kevin Adell, plaintiffs president, expressed dissatisfaction with the representation by AMS. He believed that the AMS sales staff was not selling available air time for full value and that AMS personnel, including its president, defendant Dennis Hart, were not available and responsive to plaintiffs needs. AMS and Hart were also dissatisfied with the relationship because plaintiff owed them outstanding commission payments. On February 26, 2002, the parties amended their agreement in an attempt to save the relationship. The parties agreed that plaintiff owed $568,461 in commissions, but AMS would consider аn immediate payment of $370,000 as full satisfaction of all commissions owed through December 2001. The parties also agreed that the commission rate for AMS would decrease from 15 percent to 10 percent, that there wоuld be a 30-day termination provision to end the business relationship, and that plaintiff would pay commissions to AMS on 30-day terms. The parties thereafter continued dealing with each other, but their problems did not abate. In April 2002, they sevеred the relationship.
Plaintiff, and a related company 1 that also dealt with AMS, filed suit against AMS and Hart, alleging several causes of action. Defendants filed a countercomplaint *9 seeking, among other things, rescission of the amended agreement. Plaintiffs sought partial summary disposition on that claim, arguing that defendants were barred from seeking rescission because they did not tender back the $370,000. The trial court found that the $370,000 constituted partial satisfaction of an undisputed debt, so defеndant was not obligated to tender it back. Defendants later moved for partial summary disposition on the same claim. The trial court granted the motion, finding that there was no consideration for the amended agreement, and it ordered defendants to amend their countercomplaint to include a claim that the amended agreement was void for lack of consideration. The trial court later denied plaintiffs’ motion for reconsideration of its order granting partial summary disposition.
Adell Broadcasting Corporation (hereafter plaintiff) first argues that the trial court erred by refusing to apply MCL 566.1 to the amended agreement. We agree. MCL 566.1 provides:
An agreеment hereafter made to change or modify, or to discharge in whole or in part, any contract, obligation, or lease, or any mortgage or other security interest in personal or real property, shall not bе invalid because of the absence of consideration: Provided, That the agreement changing, modifying, or discharging such contract, obligation, lease, mortgage or security interest shall not be valid or binding unless it shall be in writing and signed by thе party against whom it is sought to enforce the change, modification, or discharge.
The goal of statutory interpretation is to determine and give effect to the intent of the Legislature, and the courts must enforce unambiguоus statutory language as it is written.
Gladych v New Family Homes, Inc,
*10
Defendants argue that MCL 566.1 only applies to contracts involving real or personal property. We disagree. It is a common grammatical rule of construction that a modifying clause will be сonstrued to modify only the last antecedent unless some language in the statute requires a different interpretation.
Stanton v Battle Creek,
We disagree with defendants that
In re Certified Question (Bankey v Storer Broadcasting Co),
In this case, there was a bargained modification to the parties’ agreement. It is axiomаtic that parties to a contract may contract to modify the contract by a later agreement.
Quality Products & Concepts Co v Nagel Precision, Inc,
We nevertheless find additional bargained consideration in this case. The trial court relied on
Cochran v Nat'l Cas Co,
Defendants argue in the alternative that plaintiffs failure to pay for services constituted a complete failure of consideration, which would independently warrаnt rescission of the amended agreement.
Vowels v Arthur Murray Studios of Michigan, Inc,
Black’s Law Dictionary (5th ed) defines “failure of consideration” as follows:
As applied to notes, contracts, conveyances, etc., this term does not necessarily mean a want of consideration, but implies that a consideration, originally existing and good, has since become wоrthless or has ceased to exist or *13 been extinguished, partially or entirely. It means that sufficient consideration was contemplated by the parties at time contract was entered into, but either on account of sоme innate defect in the thing to be given or nonperformance in whole or in part of that which the promisee agreed to do or forbear nothing of value can be or is received by the promisee. It occurs where the thing expected to be received by one party and given by the other party cannot be or has not been given without fault of the party contracting to give it. [Citation deleted.]
Black’s Law Dictionary (8th ed), p 632, defines “total failure of consideration” as “[a] situation in which the contract is indivisible so that a complete lack of consideration voids the contract” and notes that the term is misleading in that it really refers to a failure оf performance.
In
Vowels,
we rescinded the parties’ contract for failure of consideration because the expected consideration could not be provided, and the defendant was excused from performance by the facts of the case.
supra,
p 363. The plaintiff and the defendant’s agent entered into an agreement for dance lessons for which the plaintiff paid money, but the agent closed the dance studio before the lessons were provided. The closing of the dance studio made performance of the parties’ contract impossible.
Id.
The impossibility of performance of the consideration required the remedy of rescission rather than an action for breach of contract. Similarly, our Supreme Court impliedly equated a complete failure of consideration with impossibility, or at least ineffectuality, of performance.
Baith v Knapp-Stiles, Inc,
Here, the consideration for the amended agreement was the continuation of the parties’ business relationship. After the amendment was made, plaintiff actively contacted potential clients and asked them to deal with Hart, and AMS continued to represent WADL TV 38. Nothing in the record reveals that plaintiff hired another marketing firm to handle the business of WADL TV 38, rejected business obtained by AMS, or interfered with the ability of AMS to obtain business for WADL TV 38. The partiеs continued their business relationship, so there is no question of material fact that there was no failure of consideration. Defendants’ breach of contract claim is the appropriate vehicle for resоlving plaintiff’s failure to pay defendants’ claimed outstanding commissions since the amended agreement.
Reversed and remanded. We do not retain jurisdiction.
Notes
World Religious Relief, Inc., doing business as Word Network, is not a party to this appeal.
This Court and our Supreme Court have reаched consistent decisions. See
Buck v Northern Dairy Co,