                                No. 3-05-0428
filed June 29, 2006.
_________________________________________________________________

                                           IN THE

                                           APPELLATE COURT OF ILLINOIS

                                           THIRD DISTRICT

                                           A.D., 2006

MICHAEL FINNIN, D.J. McPHERSON                 )   Appeal from the Circuit Court
and DAVID WRIGHT,                              )   of the 9th Judicial Circuit,
                                               )   Knox County, Illinois,
       Plaintiffs-Appellants,              )
                                   )
       v.                          )
                                   ) No. 02-L-74
BOB LINDSAY, INC., d/b/a/ BOB      )
LINDSAY HONDA-TOYOTA, and          )
ROBERT LINDSAY, JR.,               )
Individually,                      ) Honorable
                                   ) David L. Vancil,
       Defendant-Appellee.         ) Judge, Presiding.
_________________________________________________________________

JUSTICE LYTTON delivered the opinion of the court:
_________________________________________________________________


       Plaintiffs Michael Finnin, D.J. McPherson and David Wright filed a breach of contract

complaint against defendant Robert Lindsay, Jr., d/b/a Bob Lindsay Honda-Toyota

(dealership), claiming that Lindsay failed to honor a written agreement to sell the dealership

to plaintiffs. Both parties moved for summary judgment. The trial court found that plaintiffs=

modifications to defendant=s offer constituted a counteroffer which defendant did not

accept. The court granted summary judgment in Lindsay=s favor. We affirm.             InMarch

of 2002, plaintiffs, Michael Finnin, D.J. McPherson and David Wright, approached
defendant, Bob Lindsay, about selling his Honda-Toyota dealership.              Negotiations

continued over the next few months, and the agreement was eventually reduced to writing.

Both parties then made several suggestions, modifications, and counter-proposals to the

draft.

         On August 13, 2002, a few final changes to the agreement were discussed between

counsel for both parties. On August 13 or 14, defense counsel=s legal assistant sent a

letter to plaintiffs= attorney.   Enclosed was a revised agreement for the sale of the

dealership=s stock which reflected the necessary changes. The copy was signed by

Lindsay and contained all the corrections previously discussed.

         Upon receipt of the agreement, plaintiffs= attorney noticed two errors which did not

conform to the parties= intent. The parties previously agreed that plaintiffs would pay $1.1

million for the stock. The purchase price provision of the agreement stated the correct

amount. However, exhibit A to the agreement still stated that the purchase price was

$700,000. Second, the agreement made reference to another agreement for the sale of

goodwill between the parties that had since been incorporated into the agreement for the

sale of stock.

         Plaintiffs= attorney contacted defendant=s attorneys, and they discussed the errors.

On August 19, 2002, Lindsay=s attorney wrote to plaintiffs= counsel, suggesting that

plaintiffs= attorney send the draft back and he would send plaintiffs a corrected version of

the agreement. Plaintiffs= counsel did not return the contract.

         On the morning of August 22, Lindsay telephoned Finnin and informed him that he

had received another offer from a third party. During the conversation, Lindsay told Finnin

that he intended to sell the car dealership to the interested party. Finnin stated that he did

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not want to "stand in [Lindsay=s] way" but wanted to contact his partners before he made a

decision. Finnin telephoned McPherson and Wright to inform them of the situation. Finnin

also spoke with plaintiffs= attorney who recommended that the three partners sign the

agreement and return it. Finnin called Lindsay and told him that plaintiffs intended to go

through with the deal.        That same day, plaintiffs= attorney made the previously

discussed changes to the written agreement by striking out the incorrect purchase price

and inserting the correct amount in "Exhibit A" and by removing all references to the

"agreement for the sale of goodwill" on page 14. Plaintiffs then initialed the corrections,

signed the agreement, and returned the contract to Lindsay=s attorney. Lindsay refused to

sell the dealership to plaintiffs.

       Plaintiffs filed a breach of contract complaint. During his deposition, defendant=s

attorney stated that the changes were "minor" and "basically corrected the written

agreement to conform with the intent of the parties."

       At the summary judgment hearing, Lindsay argued that no contract was ever formed

between the parties because the plaintiffs made "material" modifications to the offer.

Plaintiffs claimed that the modifications were not significant or material changes to the

agreement, but rather corrections of clerical mistakes. Since the changes were consistent

with the parties= intent, plaintiffs argued that a contract had been formed. In the alternative,

plaintiffs claimed that the strict compliance rule should not be applied because the Uniform

Commercial Code (UCC) (810 ILCS 5/2-101 et seq. (West 2002)) applied to the

agreement. The trial court held that the agreement signed by Lindsay was an offer and that

plaintiffs= corrections constituted a counteroffer. The court granted summary judgment in

favor of Lindsay.

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                                        ANALYSIS

                                   I. Strict Compliance

       On appeal, plaintiffs claim that the trial court erred in granting summary judgment in

favor of Lindsay. Plaintiffs maintain that the modifications made after Lindsay signed the

agreement were simply corrections to errors in the writing and did not change the terms

agreed to by the parties; thus, a valid contract was formed.

       It is well settled that in order to constitute a contract by offer and acceptance, the

acceptance must conform exactly to the offer. Whitelaw v. Brady, 3 Ill. 2d 583 (1954); see

also Magee v. Garreau, 332 Ill. App. 3d 1070 (2002), appeal denied 202 Ill. 2d 613. Under

Illinois contract law, an acceptance requiring any modification or change in terms

constitutes a rejection of the original offer and becomes a counteroffer that must be

accepted by the original offeror before a valid contract is formed. Venture Associates Corp.

v. Zenith Data Systems Corp., 987 F.2d 429 (1993); see also Milani v. Proesel, 15 Ill. 2d

423 (1959); Whitelaw, 3 Ill. 2d 583; Worley v. Holding Corp., 348 Ill. 420 (1932).

       In the seminal case of Whitelaw v. Brady, our supreme court held that any changes

to an offer, even minor changes, constitute a counteroffer rather than an acceptance. In

1950, decedent Ramm owned an apartment building. Shortly before his death he made an

offer to Whitelaw to purchase the property. After consideration, Whitelaw decided to accept

the offer. He typed in the date for performance in the blank provided by Ramm and typed

in the date of acceptance as "12/26/51." Ramm died that same day. Whitelaw later

changed the acceptance date to "12/26/50" to correspond to the actual date he signed the

offer. The supreme court held that a valid contract had not been created because the

acceptance did not conform unequivocally to Ramm=s offer. Whitelaw, 3 Ill. 2d 583.

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       Illinois= strict compliance rule of law was recently noted and applied by the Seventh

Circuit in Venture Associates Corp. v. Zenith Data Systems, Corp. In that case, plaintiff

and defendant were attempting to negotiate the sale of defendant=s subsidiary company.

The parties exchanged several drafts of a proposed agreement.                  After months of

negotiations, the plaintiff returned a proposed purchase agreement "with minor, non-

substantive changes on it in writing." The defendant seller eventually refused to proceed,

and the sale was never completed. The plaintiff filed suit in federal court, alleging that the

parties had entered into a binding agreement when it returned the agreement with only

minor changes.       The district court granted defendant=s motion to dismiss.           Venture

Associates Corp., 987 F.2d 429.

       On appeal, the Seventh Circuit held that the plaintiff=s conduct did not create a

binding contract between the parties. The court concluded:

       "Because Illinois law demands that an acceptance comply strictly with the

       terms of the offer (citations omitted), [Plaintiff=s] modifications of [defendant=s]

       proposed agreement, however minor, precluded formation of a contract at

       that point.    Indeed, [plaintiff=s] changes created a counteroffer which

       [defendant] never accepted."

Venture Associates Corp., 987 F.2d at 432.

       Here, plaintiffs argue that they made only non-substantive, typographical

modifications to the proposed agreement for the sale of stock. We agree that plaintiffs=

changes were minor and that they apparently conformed to the agreement of the parties.

Nevertheless, Illinois case law clearly mandates that any modification, however slight,

prevents the creation of a valid contract. Plaintiffs attempt to correct or modify the terms of

                                                5
the agreement formed a counteroffer that Lindsay refused to accept.

       We recognize that many courts in other jurisdictions disagree with our disposition.

See 17 Am. Jur. 2d Contracts '87, at 112 (1964). Other states have found that immaterial

or minor differences or variances between the offer and acceptance do not prevent the

formation of a contract. Those courts have concluded that a modification of an offer

constitutes a counteroffer only if the modification is a material one. See Hollywood Fantasy

Corp. v. Gabor, 151 F.3d 203 (5th Cir. 1998) (applying Texas law); State Department of

Transportation v. Providence & Worcester R. Co., 674 A.2d 1239 (R.I. 1996); Wallerius v.

Hare, 200 Kan. 578, 438 P.2d 65 (1968); Richardson v. Greensboro Warehouse & Storage

Co., 223 N.C. 344, 26 S.E.2d 897 (1943); and Foster v. West Publishing Co., 77 Okla. 114,

186 P. 1083 (1920). Although the material modification analysis may be more appropriately

applied to the facts of this case, Illinois has yet to adopt that rule.

       Plaintiffs argue that the rule of strict compliance is not meant to allow contracting

parties to escape their obligations under the contract due to a mistake by the parties. In

support of their position, plaintiffs cite Farley v. Roosevelt Memorial Hospital, 67 Ill. App. 3d

700 (1978).

       In Farley, the parties entered into an option agreement which granted the buyer the

right to exercise an option to purchase real estate. The buyer later executed the option by

signing a different real estate contract form which did not conform to the contract form

attached to the option agreement. Defendant refused to honor the sale, informing the

purchaser that the option had not been validly exercised due to the incorrect form. In

construing the terms of the option agreement, the appellate court stated that the option

agreement required only that the purchaser provide a timely option notice to the seller. The

                                               6
court found that the terms of the agreement did not require the purchaser to include with

the notice a signed copy of the real estate agreement. The court concluded that "[w]hile

the established rule is that where an option is granted, the exercise must in every respect

meet and correspond with the offer, that rule should not be so inflexibly applied that it

cannot accommodate an acceptance which mirrors the offer, but where a ministerial

procedure was not carried out because of the mistake of one of the parties." Farley, 67 Ill.

App. 3d at 705. Therefore, the purchaser properly exercised the option to purchase the

property. Farley, 67 Ill. App. 3d 700.

       Here, whether a valid agreement exists between the parties is still in dispute. Unlike

the court in Farley, we are not operating under a valid contract and trying to determine if the

parties= actions conformed with the contractual requirements to which they agreed.

Plaintiffs made, albeit slight, changes to Lindsay=s offer. Even assuming these changes

were agreed to by the parties, the acceptance did not correspond with the offer in every

aspect as required under Illinois law. Plaintiffs= corrections constituted a rejection of the

initial offer and a simultaneous counteroffer. See D=Agostino, 205 Ill. App. 3d 898. As

previously determined, a valid agreement was not created. Therefore, the trial court

properly granted summary judgment in favor of Lindsay.

                           II. Uniform Commercial Code (UCC)

       In the alterative, plaintiffs argue that the trial court erred in concluding that the

agreement is not controlled by the UCC. Plaintiffs claim that the sale of shares of stock in a

corporation is governed by the UCC; under the UCC, an acceptance need not strictly

comply with an offer to form a valid contract.

       Article 2 of the UCC governs the sale of goods between merchants. Section 104 of

                                              7
the UCC defines "merchants" as "a person who deals in goods of the kind." 810 ILCS 5/2-

104 (West 2002).      Section 2-105 defines "goods" as "all things, including specially

manufactured goods, which are movable at the time of identification in a contract for sale

other than the money in which the price is to be paid, investment securities (Article 8) and

things in action." 810 ILCS 5/2-105(1) (West 2002). Investment securities are excluded

from the definition of goods, unless such application is "sensible and the situation involved

is not covered by [Article 8]." 810 ILCS 5/2-105(1) (comment 1) (West 2002).

       Plaintiffs and defendant are not merchants as defined by the UCC, and investment

securities are expressly excluded from the definition of goods unless it is sensible to define

them as such. In this case, the sale of the stock of Lindsay=s closely held corporation doing

business as a car dealership was a one time complex transaction. The application of the

UCC was intended to encourage the continuous transaction of goods that occur on a daily

basis in the marketplace.     See 810 ILCS 5/2-207 (West 2002) (battle of the forms

provision). It is not sensible, nor is it necessary, to apply those rules to the lengthy,

ongoing negotiations that occurred here. See Kottis v. Cerilli, 612 A.2d 661 (R.I. 1992).

                                      CONCLUSION

       The judgment of the circuit court of Knox County is affirmed.

       Affirmed.

       SCHMIDT, PJ., and O'BRIEN, J., concurring.




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