Breach of contract; Miller-Davis Co. v. Ahrens Constr., Inc.; Effect of being the first party to breach; Michaels v. Amway Corp.; Substantial breach; Able Demolition, Inc. v. City of Pontiac; McCarty v. Mercury Metalcraft Co.; Rescission; Adell Broad. Corp. v. Apex Media Sales, Inc.; Contract interpretation; Innovation Ventures v. Liquid Mfg.; Universal Underwriters Ins. Co. v. Kneeland; In re Egbert R Smith Trust; Alpha Capital Mgmt., Inc. v. Rentenbach; Frustration of performance; Kiff Contractors, Inc. v. Beeman; Waiver or modification as to plaintiff’s performance; Quality Prod. & Concepts Co. v. Nagel Precision, Inc.; CanBusHack (CBH)

The court held that the trial court did not err in finding that plaintiff did not establish a genuine issue of material fact “that the parties mutually waived or modified plaintiff’s payment obligation under” their Asset Purchase Agreement (the agreement) that “relieved plaintiff of its performance obligation before defendants rescinded the agreement.” The trial court concluded that “plaintiff’s failure to make the required $22,000 payment as specified in the [agreement] was a substantial breach of the agreement that precluded it from enforcing the agreement.” Despite the clear and unambiguous language of the agreement, plaintiff argued that the timing of the specified payment was not crucial. However, it was “also undisputed that plaintiff had not established a bank account in this country to enable it to wire the money to” defendant-CBH before defendants rescinded the agreement. “Even if plaintiff’s failure to pay the specified $22,000 amount on the stated effective date is not considered a substantial breach, there is no genuine issue of material fact that plaintiff substantially breached the agreement by failing to make any effort to make the specified payment for at least two weeks after the agreement’s stated effective date.” While plaintiff suggested “that it would follow through with payment days after the agreement was signed, there was no progress toward making that payment. Defendants waited more than two weeks for plaintiff to make the necessary arrangements to make the required payment, but no payment was made.” Under the agreement, “plaintiff’s performance consisted primarily of paying for the assets it was acquiring from CBH. More than two weeks had passed since the payment was due before defendants opted to rescind the agreement. The agreement also required that CBH, within 30 days of the effective date of the agreement, either dissolve or ‘remove [CBH] and any derivations thereof from its name.’ Given that CBH had a limited period in which it was obligated to perform, the trial court did not err by finding that plaintiff’s failure to make the required payment on the specified effective date, or at any point in the following two weeks, qualified as a substantial breach of the parties’ agreement. Because plaintiff substantially breached the agreement, it was not entitled to maintain this action against defendants for breach of contract and defendants were entitled to rescind the contract.” Affirmed.