William S. Gray & Co. v. Western Borax Co.

• Decision Date: 10 October 1938
• Docket Number: No. 8597.,8597.
• Citation: 99 F.2d 239
• Parties: WILLIAM S. GRAY & CO. v. WESTERN BORAX CO., Limited.
• Court: U.S. Court of Appeals — Ninth Circuit

99 F.2d 239 (1938)

WILLIAM S. GRAY & CO. v. WESTERN BORAX CO., Limited.

No. 8597.

Circuit Court of Appeals, Ninth Circuit.

October 10, 1938.

H. W. Elliott and Fred Aberle, both of Los Angeles, Cal., for appellant.

Chapman & Chapman, of Los Angeles, Cal., for appellee.

Before DENMAN, MATHEWS, and STEPHENS, Circuit Judges.

DENMAN, Circuit Judge.

This is an appeal from a judgment in favor of the defendant, appellee here, holding the plaintiff, appellant, not entitled to recover on a claimed breach of contract employing appellant as appellee's exclusive United States agent for the sale of the latter's borax products.

The contract contained the following arbitration clause: "In case any dispute shall arise between the parties hereto as to the construction of any provision of this agreement, or as to the fulfillment hereof by either party thereto, such dispute shall be submitted to three disinterested arbitrators, one to be selected by each of the parties to this agreement, and the third by the two arbitrators so chosen, who shall render their decision in writing and serve a copy upon each of the parties hereto, and the same shall be binding upon them and conclusive as to the matter in controversy."

Appellee demurred to the complaint on the ground that the court had no jurisdiction to proceed because inter alia it failed to show the arbitration had been waived. Before decision the demurrer was withdrawn and the failure to arbitrate prior to suit was waived by the stipulation for a reference to agreed arbitrators appointed by the court as its referees.

The district court has jurisdiction to litigate a contract, despite such an arbitration clause. The remedy of the party claiming it as a condition precedent to recovery is a stay of proceedings until it has been had or a default in pursuing the arbitration is shown. 9 U.S.C.A. § 3; Shanferoke Coal etc., Co. v. Westchester Service Corp., 2 Cir., 70 F.2d 297; Id., 293 U.S. 449, 55 S.Ct. 313, 79 L.Ed. 583.

The California cases recognize that the arbitration may be waived and the contract litigated in its courts. Landreth v. South Coast Rock Co., 136 Cal.App. 457, 461, 462, 29 P.2d 225, 226, 227; Wilson v. Mattei, 84 Cal.App. 567, 575, 576, 258 P. 453; see Pneucrete Corp. v. U. S. Fid. & Guar. Co., 7 Cal.App.2d 733, 740, 46 P.2d 1000, 1003, 1004; 3 Am.Jur. § 56, p. 887. The California Supreme Court's holdings that arbitration is a condition precedent to litigation are in cases in which there was no waiver, and the objection of a failure to arbitrate was raised by the defendants, by demurrer or plea in abatement. Clogston v. Schiff-Lang Co., Inc., 2 Cal.2d 414, 41 P.2d 555; Davisson v. East Whittier Land etc., Co., 153 Cal. 81, 96 P. 88. Since the Court has jurisdiction to entertain the suit on the contract, the waiver of arbitration may as well come after as before the commencement of litigation.

The parties stipulated for a reference and the court appointed three referees. Hecker v. Fowler, 2 Wall. 123, 17 L.Ed. 759; Shipman v. Straitsville Central Mining Co., 158 U.S. 356, 361, 15 S.Ct. 886, 39 L.Ed. 1015; Philadelphia Casualty Co. v. Fechheimer, 6 Cir., 220 F. 401, 407, Ann. Cas.1917D, 64; Eichberg v. U. S. Shipping Board Corp., 51 App.D.C. 44, 273 F. 886, 890; Longsdorf, Cyc. of Fed.Proced., § 1456, et seq.; Calif.Code Civil Proc., § 638, et seq. Their findings were adopted by the court. The pertinent facts found are hereafter summarized.

Appellee acquired certain large borax deposits, developed mines thereon and plants for refining the mineral, and manufactured from it boron products. These deposits and production facilities were in California. Appellee contemplated entering and acquiring customers consuming its products in a market throughout the United States already occupied by two powerful competing producers and distributors.

Appellant, with an existing agency distributing business, was engaged by appellee as its exclusive agent for the sale in the United States "of all the borax, crude and/ or refined, borac acid and other products produced by the party of the first part". The contract of agency which was to "continue in effect for ten (10) years" from March 11, 1931, did not specify any minimum or other amount appellee was to produce. The provision for commissions is:

"The party of the first part agrees to pay to the party of the second part as compensation for acting as its agent in and about the sale of its products and for guaranteeing accounts as herein mentioned, a commission of 10% on the delivered selling price in carload quantities on the first ten thousand (10,000) tons of 2000 pounds each sold annually and a commission of 5% on any additional quantities sold in carload lots in each calendar year as long as the net return to the producer at his plant amounts to not less than $20.00 per ton for the material sold. If and when the producer's net return falls below twenty ($20) dollars per ton at his plant it is mutually agreed that the commissions on goods netting less than twenty ($20) dollars per ton at the plant will be subject to reconsideration and further mutual agreement."

Appellant acted as such agent for over 2 years and it is not contended that it did not perform its part with due diligence. However, by the end of this time it had become apparent, and was so found, that appellee's industry was conducted at a loss and in all probability would continue to be so. During the competition with the two competitors occupying the field the prices of boron products fell greatly, apparently in part due to the competition and in part to general unfavorable business conditions during the depression. The losses depleted appellee's working capital and there was ground to fear financial difficulties which would lead to a receivership and possible bankruptcy.

In this situation, appellee made a contract for the sale of its mines, deposits and refineries and, in June, 1933, shortly after the national bank moratorium, consummated the transaction and thereafter "`produced" no more of the borax or its derivative products.

Appellant contended this sale, preventing appellee's further production, was an anticipatory breach of the contract, entitling it to damages for loss of net profit from its anticipated commissions over a period from and including May, 1933, to and including February, 1941. Appellee denied the liability and this suit followed.

The district court found that while at first a portion of the products was sold for a price in excess of $20 per ton net to appellee at the plant, from early in 1932 the products sold by appellant netted less than that amount and that when the appellee ceased to produce, because of the transfer of its borax deposits and plant, there was no prospect of a higher price. This brought the major part if not all of the business to be procured by appellant under that portion of the contract for which the commission was to be the matter of a new agreement between the parties, that is the portion reading: "If and when the producer's net return falls below twenty ($20) dollars per ton at his plant it is mutually agreed that the commissions on goods netting less than twenty ($20) dollars per ton at the plant will be subject to reconsideration and further mutual agreement."

The district court found, on substantial and competent evidence, that the parties never agreed on the rate of commission on future sales netting less than $20 per ton at the plant.

It is thus apparent that several uncertainties made impossible a rational determination of appellant's loss of profit from the anticipatory breach of the contract, if the transfer of the properties be so regarded. One was the volume of future sales, if any, at above $20 per ton net at the plant on which the commission was fixed. Another was the amount netting less than $20. Another was the commission on the latter sales which in the future might be agreed on by the parties. We agree with the finding and conclusion that appellant had not shown and could not establish what its profit from its future commissions would have been if the appellee had continued to produce.

The question whether the judgment should be for nominal damages with the right to costs need not be entertained in view of our further consideration of the appeal.

We cannot agree with appellant's fundamental contention that there was a breach of the contract by cessation of production and hence frustration of the agency. The district court found that the contract was first signed in New York by appellant, then sent to California where it was signed by appellee. No error is assigned to the finding. Hence the contract was made in California. Michelin Tire Co. v. Coleman & Bentel Co., 179 Cal. 598, 604, 178 P. 507. The place of execution and the forum chosen are the same and we interpret the contract, so far as concerns the claimed obligation of appellee to continue to produce borax in California for future sales by the appellant in various unascertainable states, according to the law of California. Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct....