EMCO Corp. v. Armor Machine & Mfg. Ltd.

• Court: Court of Appeals for the Sixth Circuit
• Decided: March 13, 2026
• Docket: 25-1635
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR PUBLICATION File Name: 26a0138n.06

No. 25-1635

UNITED STATES COURT OF APPEALS FILED FOR THE SIXTH CIRCUIT Mar 13, 2026 KELLY L. STEPHENS, Clerk ) EMCO CORPORATION, ) Plaintiff-Appellee, ) ON APPEAL FROM THE ) v. UNITED STATES DISTRICT ) COURT FOR THE EASTERN ) ARMOR MACHINE & MANUFACTURING DISTRICT OF MICHIGAN ) LTD., ) OPINION Defendant-Appellant. ) ) )

Before: THAPAR, BUSH, and MURPHY, Circuit Judges.

JOHN K. BUSH, Circuit Judge. In March 2022, Armor Machine & Manufacturing Ltd.

agreed to buy a custom machine from EMCO Corporation for about $1 million. The parties agreed

that Armor would pay EMCO “[a] 15% restocking charge . . . on returns.” R. 4-4, March 10

Purchase Order, PageID 44.1 The quote states that the machine would be delivered on

“approximately” September 9, 2022, R. 4-2, Quote, PageID 28, and Armor’s purchase order said

that the machine would be delivered in “approximately[] 6–7 months,” R. 4-4, March 10 Purchase

Order, PageID 44. According to EMCO’s terms and conditions, however, “[a]ny delivery or

shipment dates . . . are estimated dates only, and such estimated dates may be modified from time

to time at the discretion of EMCO.” R. 4-3, Terms & Conds., PageID 36–37 (capitalization

1 Armor claims this order is a forgery. But the district court properly found that Armor had admitted in discovery responses that Armor issued that order. Also, Armor explicitly admitted it did not add any terms and conditions to EMCO’s own. No. 25-1635, EMCO Corp. v. Armor Mach. & Mf’g, Ltd.

altered). Armor “[a]dmitted” that this caveat was part of the terms of the contract. R. 18-4, RFAs,

PageID 169 (bolding omitted). On October 24, 2022, when the machine still had not shipped, the

parties executed another purchase order calling for modifications to the machine.

Almost a month later (on November 16), EMCO updated Armor on the progress of the

order. Armor’s vice president, frustrated, accused EMCO of having “let [him] down” and missed

on “delivery and price.” R. 22-4, Emails, PageID 409. But he sent that email to a third party, not

EMCO, and he did not cancel the contract. Id.

Almost two months later (on January 4, 2023), EMCO informed Armor that the machine

was ready to ship. Dissatisfied by the delay, Armor refused to take any delivery and cancelled the

contract. Over a year later (in May 2024), EMCO sold the machine to another buyer for about

$860,000.

EMCO then filed a one-count complaint against Armor for breach of contract in the Eastern

District of Michigan. The parties cross-moved for summary judgment; the district court granted

EMCO’s motion on liability but denied both motions in all other respects. The district court

concluded that (1) Armor breached by refusing to accept the machine and (2) any delivery delay

by EMCO was neither a breach of contract nor an act of bad faith. After a bench trial on damages,

the district court concluded that Armor’s refusal to accept the machine was not a return under the

contract, so EMCO was entitled to damages exceeding the 15% restocking charge.

Armor now appeals, arguing that (1) EMCO’s failure to deliver the machine in a timely

fashion was either a breach or an act of bad faith and (2) EMCO is entitled only to the restocking

fee because its rejection of the machine was a return. Our de novo review of the district court’s

legal conclusions reveals no error. See T. Marzetti Co. v. Roskam Baking Co., 680 F.3d 629, 633

(6th Cir. 2012); Hunt v. Sycamore Cmty. Sch. Dist. Bd. of Educ., 542 F.3d 529, 534 (6th Cir. 2008).

2 No. 25-1635, EMCO Corp. v. Armor Mach. & Mf’g, Ltd.

Nobody contests that Armor breached the contract, so the only question is whether its

breach was excused. Because this is a contract for the sale of goods, we apply the Uniform

Commercial Code, which Michigan has adopted at Mich. Comp. Laws §§ 440.1101 to 440.11102.

See Neibarger v. Universal Coops., Inc., 486 N.W.2d 612, 614–15 (Mich. 1992). The common

law governs when the UCC, as adopted, does not provide a specific rule of law. See Mich. Comp.

Laws § 440.1103(2).

In Michigan, a buyer is excused from performing a UCC-governed contract when the seller

commits a “substantial breach” of contract. Atlas Oil Co. v. Nassar, No. 291092, 2010 WL

3389743, at *4 (Mich. Ct. App. Aug. 26, 2010) (per curiam). When, as here, the parties did not

agree on a specific date of delivery, the date of delivery need only be reasonable. Mich. Comp.

Laws § 440.2309(1). That means the item need be delivered “within a feasible timeframe.”

Borsand Fam. Found. Inc. v. Woodward Ave. Grp. LLC, No. 368456, 2025 WL 3083626, at *6

(Mich. Ct. App. Nov. 4, 2025) (per curiam). And if the contract does not indicate that time is of

the essence, delay in performance often does not constitute substantial breach of the contract. J.

S. Evangelista Dev., LLC v. APCO, Inc., No. 357789, 2023 WL 2051174, at *4 (Mich. Ct. App.

Feb. 16, 2023) (per curiam); see also McCarty v. Mercury Metalcraft Co., 127 N.W.2d 340, 343

(Mich. 1964).

Any delay by EMCO does not excuse Armor’s breach. Nowhere does the contract indicate

that time is of the essence. Indeed, it says the opposite. It provides that the timelines were

estimates and that EMCO could change the delivery date at will. Armor claims that because it told

EMCO it had poured a pad for the machine, the parties knew time was of the essence. But that

information did not tell EMCO the delivery needed to be soon, and it certainly did not override the

contractual agreement to estimated timelines changeable at will. Moreover, in providing that the

3 No. 25-1635, EMCO Corp. v. Armor Mach. & Mf’g, Ltd.

delivery would be in approximately six or seven months, the contract contemplated that delivery

would take place around September or October 2022. Yet, in October 2022, Armor asked for

modifications to the machine. We struggle to see how delivery in October 2022 was commercially

feasible when Armor asked for modifications to the machine that same month. And EMCO was

ready to ship only two and a half months after the modification request. Any delay is therefore

not a substantial breach of contract.

We similarly agree with the district court that EMCO complied with its obligation to act in

“good faith in” the “performance” of the contract. Mich. Comp. Laws § 440.1304. The delay was

caused by supply chain disruptions, not any desire to spite Armor or deprive it of the benefit of the

bargain. Moreover, EMCO provided the changes called for in the October 2022 purchase order

free of charge because of the delay. We struggle to see how anyone could conclude that EMCO

acted in bad faith in these circumstances, and Armor has provided no evidence to the contrary.

Finally, the district court did not err in finding that EMCO was entitled to damages

exceeding the amount of the restocking fee. The standard UCC remedy for a buyer-side breach is

to “resell and recover” “the difference between the resale price and the contract price together with

any incidental damages allowed under the” UCC. Id. §§ 440.2703(d), 440.2706(1). Armor tries

to avoid paying EMCO’s damages by arguing that it returned the machine, so EMCO is therefore

entitled only to the restocking fee. But the district court found as a fact that Armor did not request

to return the machine, that EMCO did not agree to accept a return, and that EMCO had not agreed

to accept a 15% restocking fee as its sole remedy. Armor offers no basis for us to overturn these

findings. Consequently, Armor must pay EMCO’s damages.

Because the district court did not err when it found that Armor’s breach is not excused and

that the restocking fee did not limit EMCO’s damages, we AFFIRM.