UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

RICHARDS-WILCOX, INC. 

Plaintiff,

v.

MINSOR POWERTRAIN SYSTEMS, LLC,

Defendant.

No. 02 C 8494

Judge James B. Zagel

MEMORANDUM OPINION AND ORDER

Plaintiff Richards-Wilcox, Inc. (“Richards-Wilcox”) designs and installs overhead

conveyor systems. Defendant Minsor Powertrain Systems (“Minsor”) is engaged in the business

of machining and painting engine blocks for the automotive industry. Richards-Wilcox’s suit for

breach of contract arises out of the failed installation of a conveyor system in Minsor’s Saginaw

plant. 

In February 2001, Richards-Wilcox became aware that Minsor was interested in

purchasing a conveyor system for its plant in Saginaw, Michigan. On May 9, 2001, RichardsWilcox submitted a proposal for the creation and installation of an expanded overhead conveyor

system. Minsor accepted Richards-Wilcox’s proposal with purchase order # 7285, which was

executed by Minsor’s plant manager, Charles Wise. The original contract provided for the

installation of a turnkey conveyor system, installation of new trolleys and swivel on the existing

conveyor chain, and completion of work to take place during Minsor’s customer shutdown period

between July 2 and July 16. 

On June 20, 2001, Richards-Wilcox prepared and sent a drawing of the proposed conveyor

system to Minsor. As is typical, Minsor requested some changes to the proposed system,

including the addition of 100 feet of new track and a change in the conveyor’s direction. To allow
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for these changes, Wise executed two change orders: the first on July 2nd, 2001 and the second on

July 16th, 2001. The July 2nd change order stated that “the final tie-in will require a four-day

weekend, the date to be determined,” the “contract time” would be “extended by X days,” and the

“contract change amount” was $27, 471. The July 2nd change order was accepted by RichardWilcox’s representative, Michael Nash, the same day. The July 16th change order stated that the

final tie-in would require 8 consecutive dates of installation: the first 4 days to be completed

during production and the last 4 days to be completed during a shutdown of the plant. The July

16th change order also added an additional $10,099 to the contract price. It was accepted by Nash

on August 7, 2001. 

After the execution of the change orders, Richards-Wilcox continued installing the

conveyor system at Minsor’s plant. In August 2001, Richards-Wilcox’s subcontractor finished all

of the installation work that could be completed without shutting down Minsor’s preexisting

conveyor system. Thereafter, the parties had difficulty scheduling a shutdown time. On October

16 and 17, 2001, the parties met to discuss a mutually agreeable shutdown date. At that time,

Minsor agreed to shut the existing conveyor lines down on two upcoming weekends. Despite this

agreement, Minsor did not shutdown its conveyor lines and eventually elected to abandon the

project.

Richards-Wilcox now seeks summary judgment on its breach of contract claim. Summary

judgment is proper when there is no genuine issue of material fact and the moving party is entitled

to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-323 (1986). In

determining whether any genuine issue of material fact exists, I must construe all facts in the light

most favorable to the non-moving party and draw all reasonable and justifiable inferences in its
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favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). A genuine issue of fact exists

only when, based on the record as a whole, a reasonable jury could find for the non-movant. 

Pipitone v. United States, 180 F.3d 859, 861 (7th Cir. 1999). 

Richards-Wilcox argues that Minsor breached its agreement when it refused to allow

Richards-Wilcox to finish the conveyor system installation. Minsor does not dispute that it

abandoned the project but argues instead that Richards-Wilcox had already breached their

agreement by failing to (1) complete the installation within the designated time, (2) design a

system that met the parties’ contractual requirements, and (3) install a system that was structurally

sound.

As a preliminary matter, Minsor argues that Michigan and not Illinois law should apply to

this case. As a general rule, Illinois courts construe contracts according to the law of the state in

which the contracts were entered. Wildey v. Springs, 840 F. Supp. 1259, 1263 (N.D. Ill. 1994)

(citing Wm. J. Lemp Brewing Co. v. Ems Brewing Co., 164 F.2d 290, 293 (7th Cir. 1947)) rev’d

on other grounds.. That is, unless the contract is performed in another state; in which case, the

laws of that state will govern in the event that the laws differ. Id. Minsor claims that Michigan

law should apply since the contract was to be performed in Michigan. While Minsor is correct in

this assertion, it fails to point out any conflict between the Illinois and Michigan laws as they

apply to this case. And where there is no demonstrated conflict, Illinois choice of law rules dictate

that I must proceed under the law of the forum state. Sterling Fin. Mgmt., L.P. v. UBS

PaineWebber, 782 N.E.2d 895 (Ill. App. Ct., 2002).

In the instant case, it is clear that Minsor breached its agreement with Richards-Wilcox by

failing to allow Richards-Wilcox to finish the conveyor system installation. The question which
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remains, however, is whether Richards-Wilcox also breached the agreement. "It is commonplace

contract law that a party cannot have the benefits of a contract unless he has also performed the

obligations." McBride v. Pennant Supply Corp., 623 N.E.2d 1047, 1052 (Ill. App. Ct. 1993)

(quoting Kobus v. Jefferson Ice Co., 276 N.E.2d 725, 727 (Ill. App. Ct. 1971)). Thus, if RichardsWilcox breached the agreement before Minsor abandoned the project, Richards-Wilcox may not

be entitled to compensation. 

First and foremost, Minsor claims that Richards-Wilcox breached their agreement by

failing to install the conveyor system during the originally designated time. The contract

explicitly states that “time is of the essence, all work to be completed between our customer

shutdown periods: July 2-16.” The evidence clearly demonstrates that Richards-Wilcox could not

and did not complete the work before July 16, 2001. Richards-Wilcox argues, however, that the

terms related to timing of the project were validly modified by two change orders submitted by

Minsor.

Under Illinois law, “a valid modification of a contract must satisfy all the criteria essential

for a valid contract, including offer, acceptance, and consideration.” Schwinder v. Austin Bank,

809 N.E.2d 180, 189 (Ill. App. Ct. 2004). When a contract is modified, the terms of the

modification, not the original contract, control in an action for breach of contract. Id. “A

modified contract containing a term inconsistent with a term of an earlier contract between the

same parties is interpreted as including an agreement to rescind the inconsistent term in the earlier

contract.” Id. Here there is not much debate as to the validity of the modification. The change

orders were authored by Wise, Minsor’s representative, and accepted by Nash, Richards-Wilcox’s

representative, and each contained additional consideration in the form of payments to be made by
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Minsor: the first in the amount of $27,471 and the second in the amount of $10,099. What is at

issue is the meaning of the change orders. 

The first change order, submitted on July 2, 2001, stated that the shutdown required to

finalize the conveyor system installation would occur on a “date to be determined” and that the

“contract time” would be “extended by X days.” The second change order, submitted on July 16,

2001, stated that the “final tie-in will require 8 consecutive days of installation. The first 4 days

can be completed during production. The last 4 days must be completed during shutdown.” 

Taken together, these change orders show that Minsor was willing to and did extend the time of

installation past the contract’s original July 16th deadline. Each of the change orders clearly

referenced work which was to be completed after the original July 16th deadline, with the July 2nd

change order providing for an unspecified extension of time.

What’s more, Minsor allowed Richards-Wilcox to continue its installation efforts long

after the July 16th deadline had passed. Minsor allowed Richards-Wilcox to complete the first of

the four remaining days of installation in August 2001 and continued to discuss with RichardsWilcox possible shutdown dates well into October 2001. This demonstrates Minsor’s intention to

extend the time allowed for completion of the conveyor system through its change orders.

Minsor argues briefly that it was fraudulently induced into submitting the change orders at

issue here. It claims that Richards-Wilcox intentionally submitted its proposed system drawings

late so that Minsor would have to extend the time in order to incorporate necessary changes. 

According to Minsor, Richards-Wilcox was attempting to stall the project and cover-up the fact it

could not make timely completion. 
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Given that the statements extending time were incorporated into the change orders by

Minsor’s representative, it is difficult to see how those extensions were induced by RichardsWilcox’s actions. There is nothing in the record to indicate that Wise pressed the timing issue

with Richards-Wilcox. In fact, he did the opposite; instead of emphasizing the need to incorporate

the changes during the prearranged time, he wrote an extension of time into the first change order

and then continued to plan the installation after the deadline had passed. Accordingly, I find that

the original contract was validly modified to extend the project deadline. Because the time was

extended, Richards-Wilcox did not breach the contract’s timing provisions.

Next, Minsor argues that Richards-Wilcox breached the parties’ agreement by failing to

provide a turnkey conveyor system and by failing to provide a system that was structurally sound. 

Minsor provides testimony that Richards-Wilcox refused to provide the controls and other parts

needed to make a turnkey system. Minsor also provides expert testimony that the parts of the

conveyors that were installed were structurally unsound. These, unlike the contract modification,

are issues of fact, not law, which are not properly resolved during summary judgment. 

For the reasons herein, Richards-Wilcox’s Motion for Summary Judgment is GRANTED

in part and DENIED in part.

ENTER:

_______________________________ James B. Zagel

James B. Zagel

United States District Judge

DATE: May 5, 2005