Opinion
No. 116673 (51).
December 15, 2000.
COA: 207538, Wayne CC: 96-612160-CK
On order of the Court, the application for leave to appeal is considered and, pursuant to MCR 7.302(F)(1), in lieu of granting leave to appeal, we VACATE that part of the Court of Appeals March 21, 2000, decision which held that a genuine fact issue exists as to whether a contract may be implied in law. Such a contract cannot be recognized where, as here, the express contract covers the subject sales by providing that no commission would be paid for them. We REMAND this case to the Court of Appeals for reconsideration of the issue whether there exists a genuine fact dispute as to whether defendant's alleged silence in the face of plaintiff's activity relative to the excluded machine tool suppliers constituted a waiver in light of the anti-waiver provision in the contract which purports to prevent modification of the written agreement.
The motion for peremptory reversal also is considered, and it is DENIED as moot.
We do not retain jurisdiction.
Cavanagh and Kelly, JJ., would deny leave to appeal.