Carolina Throwing Co. v. S & E NOVELTY CORP., 15316.
| Decision Date | 10 May 1971 |
| Docket Number | No. 15316.,15316. |
| Citation | 442 F.2d 329 |
| Parties | CAROLINA THROWING COMPANY, Inc., Appellant, v. S & E NOVELTY CORPORATION and Rome Knitting Mills, Appellees. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Robert L. Bradley, Jr., Gastonia, N. C. (Garland, Alala, Bradley, and Gray, Gastonia, N. C., on brief), for appellant.
Barney Stewart, III, Charlotte, N. C. (Moore & Van Allen, Charlotte, N. C., on brief), for appellees.
Before HAYNSWORTH, Chief Judge, and BOREMAN and BRYAN, Circuit Judges.
Review is sought of an order of the District Court staying the proceedings in this action pending arbitration.
Neither party has questioned the Court's jurisdiction to entertain the present appeal. There is a substantial doubt, however, that such an order constitutes an interlocutory injunction within the terms of 28 U.S.C. § 1292. That very issue is presently being prepared for argument before this Court in another case. Pending the hearing and decision in that case, it would be inappropriate to undertake to decide the unelucidated question in this case. The decision here need not await resolution of the jurisdictional question, however, since we agree with the District Court on the merits.
The plaintiff-appellant argues that no written contract containing an arbitration agreement was binding upon it so that the writing requirement of 9 U.S.C. § 2 was not satisfied.
The contract was initiated when the plaintiff was telephoned by a New York textile broker through whom it had previously done business. The broker inquired if the plaintiff was willing to prepare yarn for the defendant. After some negotiations through the broker, the parties arrived at mutually agreeable terms for the contract. These provisions were incorporated into a "Sales Note" written and signed by the broker and sent to each party. This Sales Note contained the arbitration clause under dispute. Over a period of six months, five more Sales Notes, reflecting some term changes, were executed by the broker and mailed to the parties. Neither party ever signed the notes in the space provided, but they continued to perform according to the terms of the written notes until a dispute arose over the quality of work performed. The plaintiff paid the broker a commission for securing the order.
There were also conversations between the parties by telephone, and Carolina Throwing contends that the only binding agreement arose out of such conversations and not out of the Sales Note.
The District Court concluded, and we...
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