City Trade and Industries, Limited v. New Central Jute Mills Co.

• Decision Date: 01 July 1969
• Parties: , 250 N.E.2d 52 CITY TRADE & INDUSTRIES, LTD., Appellant-Respondent, v. NEW CENTRAL JUTE MILLS CO., Ltd., Respondent-Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 557

302 N.Y.S.2d 557

25 N.Y.2d 49, 250 N.E.2d 52

CITY TRADE & INDUSTRIES, LTD., Appellant-Respondent, v. NEW CENTRAL JUTE MILLS CO., Ltd., Respondent-Appellant.

Court of Appeals of New York.

July 1, 1969.

Marshall C. Berger and Gabriel Kaslow, New York City, for appellant-respondent.

Mervin C. Pollak, New York City, for respondent-appellant.

BURKE, Judge.

New Central Jute Mills in an India corporation which manufactures jute backing cloth for carpets. On November 21, 1959 New Central entered into an agreement with plaintiff, City Trade & Industries (hereinafter referred to as CTI), whereby CTI agreed to act as defendant New Central's exclusive distributor and selling agent in both the United States and Canada. CTI's remuneration was restricted to a predetermined percentage of the purchase price of all orders forwarded to New Central.

Since CTI's compensation was dependent entirely upon sales, that corporation necessarily wished to secure some assurance from New Central that the offering price for its jute backing cloth would be competitive. Conversely, since New Central was willing to retain CTI as its exclusive representative with the power to bind it in its contractual representations, it was essential to New Central that it retain some power with reference to the price at which its goods would be sold. Without such control, this Indian corporation feared it might well find itself committed to contractual agreements negotiated by CTI solely for the purpose of increasing the total sales and enhancing its compensation, to New Central's obvious detriment.

The competing interests of the parties resulted in the adoption of the following contractual arrangement:

'6) * * * CTI shall effect sales of NEW CENTRAL'S manufactured goods to CTI's customers in the territories covered by this agreement at prices mutually agreed upon from time to time between NEW CENTRAL and CTI. Such prices shall be in line with those of similar goods manufactured in India by Ludlow Jute Co., Ltd., and distributed in the territory covered by this agreement. CTI shall regularly submit to NEW CENTRAL copies of all their sales contracts.

'7) * * * NEW CENTRAL allows CTI to use due and reasonable discretion to grant a maximum discount of 2% On prices as referred to in paragraph (6), but only in case goods cannot otherwise be adequately sold. * * * CTI also may request NEW CENTRAL'S approval for sales at below their prices as referred to in paragraph (6) and above, should any important business be possible only at this reduced price.'

By agreement, the relationship was to continue until March 31, 1964, at which time the parties would evaluate their respective positions and determine whether the association should be extended. When that date arrived, New Central and CTI were unable to agree on terms for extending the initial arrangement. Accordingly, the distributorship came to an end. The present action was then commenced by plaintiff CTI, and the sole relief sought was an accounting for the duration of the contract. New Central moved to stay this accounting and demanded instead that plaintiff submit all disputes and issues to arbitration, as originally provided for in the contract. CTI opposed the demand for arbitration and asserted that the contract--on which the accounting was premised--was actually invalid and unenforceable as certain provisions effectively provided for 'vertical price fixing' in violation of the Federal antitrust laws.

Special Term directed a trial on the issue of illegality. Justice Rosenberg, to whom the matter was referred, concluded that the contract was not a unilateral pricefixing agreement, but constituted instead an agreement wherein the specific terms provided that the goods be sold at a price which would be mutually acceptable. Justice RoSenberg's determination was made following the submission of an agreed statement of facts, presented by the parties to show the manner in which they observed the provisions of the contract. The stipulation established the following course of conduct. From time to time, New Central sent CTI lists containing prices approved by New Central for sales by CTI to its American customers. However, few sales were made by CTI at these prices, as they were seldom realistic in view of prevailing market conditions. Consequently, CTI would ignore the recommended prices and would instead forward orders to New Central, listing the quantity of the desired goods as well as the contract price quoted to the purchaser by CTI. Invariably, New Central would confirm this price by delivering the requested goods. During the latter part of this exclusive distributorship, CTI adopted a standard contract which informed purchasers that CTI had executed the agreement 'as agents for New Central Jute Mills Co. Ltd.,' and that the contract was 'subject to confirmation'.

The stipulation effectively demonstrated that the parties failed to adhere to the elaborate pricefixing arrangement embodied in their contract and, by their conduct, reduced the principal-to-principal relationship described in their distributorship agreement to a mere agency wherein the agent was given full authority to select a price which was then forwarded to the principal for ratification. It was Justice Rosenberg's opinion, based upon the contract and these stipulated facts, that the agreement between these parties was not violative of the antitrust laws and did not constitute a restraint on trade.

Following this determination, Special Term directed the parties to arbitrate their dispute and stayed the plaintiff from proceeding in another action then pending in the Federal court. The Appellate Division, First Department, 30 A.D.2d 513, 290 N.Y.S.2d 108, modified this order by deleting the provision which stayed the plaintiff from proceeding further in another action then pending in Federal court. Since we conclude that the agreement between the parties does not constitute vertical pricefixing in violation of the antitrust laws, we affirm that portion of the Appellate Division determination requiring the plaintiff to submit its claim to arbitration. We are also of the opinion that the Appellate Division properly exercised its discretion when it deleted the provisions of Special Term's order requiring plaintiff to stay its action then pending in a Federal court in Georgia.

CTI advances three points on this appeal. The argument is made at the outset that the defendant is precluded from asserting its rights to arbitration because of its alleged involvement in prior litigations against the plaintiff in other jurisdictions through various 'alter egos.' Specific reference is made to prior proceedings conducted in the Georgia and Delaware State courts. Both actions were attachment proceedings, brought by two Indian banks against quantities of jute backing located in the respective jurisdictions. In each case, the bank asserted its status as holder in due course of a draft received by them from New Central. The status of 'alter ego' is inferred by plaintiff from the participation of the defendant's attorney as an adviser to these foreign banks in the attachment proceedings. Without additional evidence to support it, this claim must be dismissed as meritless. As Justice SARAFITE observed, after setting forth the exact nature of these proceedings, 'It strains credulity to conclude, as plaintiff urges, that these other parties are defendant's 'alter egos acting at (its) instigation and command.''

The second contention advanced by CTI is that New Central waived its right to arbitration by waiting 18 months after the action for an accounting had been commenced, before seeking to enforce its arbitration agreement. Concededly, in Matter of Zimmerman v. Cohen, 236 N.Y. 15, 139 N.E. 764, this court held that a party had waived its right to arbitration where the alleged delay exceeded two years And the party proceeded during that time to treat the complaint in the ordinary manner. In the instant case, CTI had stipulated to several extensions of time for serving the answer to the complaint. While the request for arbitration was not made for 18 months, it was forthcoming within the stipulated period for filing an answer. Additionally, CTI admits it acquiesced in New Central's failure to proceed aggressively because of a mutual desire to bring about an amicable disposition of the controversy. It is well settled that a demand for arbitration is timely where it is made prior to the filing of an answer. (See Matter of Haupt v. Rose, 265 N.Y. 108, 491 N.E. 853; see also, Domke, Law and Practice of Commercial Arbitration, § 19.01.) Thus, while the request for arbitration was truly made after a considerable lapse of time, it was...