Breach of contract action regarding construction work; Credibility; Wright v Wright; Breach of contract; Bank of Am, NA v First Am Title Ins Co; Effect of the first breach; Michaels v Amway Corp; Substantial breach; McCarty v Mercury Metalcraft Co; Material breach; Omnicom of MI v Giannetti Inv Co; Waiver; Patel v Patel; Effect of an intent to repudiate; Schnepf v Thomas L McNamara Inc; Account stated; Fisher Sand & Gravel Co v Neal A Sweebe, Inc; Acceptance by inference; Corey v Jaroch; Acceptance by silence; Dunn v Bennett

Finding no errors requiring reversal, the court affirmed the trial court’s dismissal of plaintiff-subcontractor’s breach of contract and account stated claims against defendant-general contractor. Plaintiff alleged defendant refused to pay for work plaintiff completed on two projects, and that defendant’s failure to object to plaintiff’s invoices established an account stated in the amount attested to by plaintiff. Defendant counterclaimed for breach of contract, alleging plaintiff failed to fully and properly perform the work, causing it to incur expenses to complete and correct plaintiff’s work. The trial court dismissed the claims. On appeal, the court first found that the trial court did not err by “determining the testimony of defendant’s operations manager and former project manager was more credible than that of plaintiff’s witnesses, because there were no material contradictions in their testimony.” It also held that the trial court did not err by “finding plaintiff committed the first material breach of the Agreement by failing to properly install the conduit at” the first project, depriving defendant of a substantial benefit of the Agreement. Balancing the considerations, “the trial court’s determination that plaintiff materially breached the Agreement before submitting its . . . invoice was not in error.” The court further found defendant “did not commit a breach when it failed to pay plaintiff’s invoice for the [first] project because the invoice did not appropriately reflect deficiencies plaintiff was made aware of, and plaintiff had not completed the scope of work.” Because, under the Agreement, defendant “was not obligated to pay plaintiff before its work was completed,” it did not breach the contract when it did not pay the invoices. Finally, the court held that because defendant objected to the charges, “no mutual assent to an account stated was established.” Defendant never manifested assent “‘to the correctness of the statement of account between [the parties].’” The court noted that acceptance “of the account stated cannot be inferred, not only because of the objections made by defendant, but because the only payment made by defendant was before the first invoice, by which plaintiff is claiming an account stated was even produced. This payment cannot illustrate acceptance because plaintiff had not stated the account when it was made.”