H. S. Cramer & Co., Inc. v. Washburn-Wilson Seed Co.

• Decision Date: 25 June 1948
• Docket Number: 7423
• Citation: 68 Idaho 416,195 P.2d 346
• Court: Idaho Supreme Court
• Parties: H. S. CRAMER & CO., Inc. v. WASHBURN-WILSON SEED CO

195 P.2d 346

68 Idaho 416

H. S. CRAMER & CO., Inc. v. WASHBURN-WILSON SEED CO

No. 7423

Supreme Court of Idaho

June 25, 1948

Appeal from District Court, Second Judicial District, Latah County A. L. Morgan, Judge.

Judgment reversed and cause remanded with directions to reinstate the action and to overrule the demurrer on which the judgment of dismissal was based.

E. G Elliott, of Boise, for appellant.

An arbitration award is a contract, because, by the submission the parties agree to do what may be awarded; and when the award is made, it is read into the original agreement. 3 Amer.Juris, 865, 972-973, 975; District of Columbia v Bailey, 171 U.S. 161, 18 S.Ct. 868, 43 L.Ed. 118; Smith v. Morse, 9 Wall. 76, 76 U.S. 76, 19 L.Ed. 597; Bayne v. Morris, 1 Wall. 97, 68 U.S. 97, 17 L.Ed. 495.

Estes & Felton, of Moscow, for respondent.

In Washington, an arbitration proceeding is wholly statutory and a common law arbitration is not recognized. Puget Sound Bridge & Dredging Co. v. Lake Washington Shipyards, 1 Wash.2d 401, 96 P.2d 257.

The parties have failed to show the compliance with section 420-430, Remington Revised Statutes of the State of Washington, and specifically have failed to plead compliance with section 422 of Remington's Revised Statutes of the State of Washington.

Arbitration is in the nature of a judicial proceeding. Brody v. Owen, 259 A.D. 720, 18 N.Y.S.2d 28, 30.

The question is one of remedy and not of right. The law which controls in the matter of remedy is the law of the forum and no other. California Prune & Apricot Growers Ass'n., Appt. v. Catz American Co., 9 Cir., 60 F.2d 788, 85 A.L.R. 1117; Electrical Research Products v. Vitaphone Corporation, 20 Del.Ch. 417, 171 A. 738, at page 748.

Miller, Justice. Budge, Holden and Hyatt, JJ., concur. Givens, Chief Justice, specially concurring.

OPINION

Miller, Justice.

December 23, 1946, the H. S. Cramer Co., a New York corporation, plaintiff, filed its complaint in the District Court of Latah County, State of Idaho, against the Washburn-Wilson Seed Co., defendant, an Idaho corporation with its principal place of business at Moscow, Idaho, and in which it is alleged, that on the 7th day of May, 1946, because of disputes and differences existing between said parties concerning claims and allowances made by plaintiff against defendant under certain contracts theretofore entered into between said parties, being Contract No. 1353 of December 4, 1945, and No. 1361 of January 14, 1946; and that on said May 7, 1946, plaintiff and defendant entered into an agreement in writing to submit the disputed matter to the award of the arbitration committee, appointed in the city of Seattle, Washington, by the National American Wholesale Grocers Association, the National Food Brokers Association and endorsed by the National Canners Association. Said arbitration commission consisted of three named arbitrators, a copy of which agreement and summation is attached, marked "Exhibit A" and made a part of the complaint. (Exhibits "A" and "B" are transposed).

Thereafter, the arbitrators, having qualified, heard the plaintiff and defendant on their said disputed matters and on the 3rd of June, 1946, at Seattle, Washington, made and published their award in writing of and concerning the matters so referred and thereafter said arbitrators awarded and declared that defendant was justly indebted to plaintiff in the sum of $ 1580.21 for the claims and allowances aforesaid, a copy of which said award is marked "Exhibit B" and made a part of said complaint.

The plaintiff alleges that on or about June 10, 1946, it gave notice of said award to the defendant and demanded payment of the said sum of $ 1580.21 so awarded as aforesaid; that the defendant has not paid the same, or any part thereof, save and except the sum of $ 600 and that there is now due and owing the plaintiff from the defendant the sum of $ 980.21 with interest thereon from the 3rd day of June, 1946.

The agreement of arbitration "Exhibit B", is signed by the respective parties with the corporate seals affixed. Said "Exhibit B" in connection with other matters shows that the parties thereto agree to abide by the decision of the arbitration committee and that the findings of said arbitration committee shall be binding upon them, their representatives, successors and assigns as affectively as would a decision of the court of last resort in the state of Washington and that said arbitration committee is authorized and empowered to determine what allowance, if any, shall be awarded and said parties agreed "that the party against whom the allowance be awarded shall promptly pay the amount thereof to the other."

"Exhibit A", signed by the arbitrators, shows that there was voluntarily submitted the matters under controversy, consisting of a vast number of items and amounts in connection therewith, between the parties named by an agreement in writing, duly signed and attested, and which was made their findings and award to the effect that H. S. Cramer and Co. Inc., 202 Produce Exchange, New York 4, New York, known as purchaser, should be reimbursed in the sum of $ 980.21.

January 7, 1947, the defendant filed its demurrer to plaintiff's complaint and among other alleged grounds of demurrer stated: "That the court has no jurisdiction of the subject of the action."

October 10, 1947, the issue of law having been duly submitted to the court by the plaintiff and defendant, the district judge sustained said demurrer upon the ground that the court was without jurisdiction of the matter, and ordered adjudged and decreed that the plaintiff take nothing by this action and that the same be dismissed.

January 5, 1948, notice of appeal from the order and judgment of dismissal of the action was filed and served.

Appellant submits three specifications of error, all of which relate to the same matter that is, that the court erred in dismissing said action for and upon the ground that it had no jurisdiction of the matter. The only question submitted for consideration is, "Did the district court have jurisdiction of the subject of the action?"

At page 3 of respondent's brief, it is said, "Defendant-respondent filed a demurrer to the complaint on several grounds (p. 16, fol. 40-41-42), but the court did not pass on any of the grounds for demurrer, or motion, except the demurrer on the ground that the court had no jurisdiction of the matter (p. 19, fol. 48-49)."

From the above it is made to appear that the respondent recognizes that a jurisdictional question is all that is now involved and has attempted to maintain that theory. In support thereof respondent quotes sec. 422 of Remington's Revised Statutes, being the Washington Code, to wit:

"Sec. 422 How arbitration conducted. The said arbitrators shall be duly sworn to try and determine the cause referred to them, and a just award made out, under the hands and seals of a majority of them, agreeably to the terms of submission. Said award, together with the written agreement to submit, shall be sealed up by the arbitrators and delivered to the party in whose favor it shall be made, who shall deliver the same, without breaking the seal, to the clerk of the superior court of the county where said arbitration is held, who shall enter the same on record in his office. A copy of the award, signed by said arbitrators, or a majority of them, shall also be delivered to the party in whose favor it is rendered, who shall, if the matter be not settled, serve a copy of the same on the adverse party, and if no exceptions be filed against the same within twenty days after such service, judgment shall be entered as upon the verdict of a jury, and execution may issue thereon, and the same proceedings [may be had] upon said award, with like effect as though said award were a verdict in a civil action."

Section 422, quoted in respondent's brief is a part of the compilation of the Washington Code of 1881, as section 266. Section 266, aforesaid, was carried into and became a part of Remington and Ballinger's Annotated Code and Statutes of 1910 of Washington as Section 422, Chapter 13, "Arbitration, And Judgment Thereon."

By chapter 138, Session Laws of 1943, sections 420 to 430, inclusive, and being within sections 264 to 274, Washington Code of 1881 were repealed and by said chapter there was enacted acts covering the subject of "Arbitration Of Actions For Legal Or Equitable Relief."

Chapter 138 of the Session Laws of 1943 was carried into and became a part of Remington's Revised Statutes of Washington as Chapter 13, and included Sections 430 -- 1 to 430 -- 23, inclusive, Rem.Supp.1943, as enacted in 1943. Section 430 -- 1, aforementioned, was amended by Chapter 209, Section 1, page 890, Session Laws 1947, to read: "Two or more parties may agree in writing to submit to arbitration, in conformity with the provisions of this act, any controversy which may be the subject of an action existing between them at the time of the agreement to submit, or they may include in a written agreement a provision to settle by arbitration any controversy thereafter arising between them out of or in relation to such agreement. Such agreement shall be valid, enforceable and irrevocable save upon such grounds as exist in law or equity for the revocation of any agreement. * * *" Rem.Supp.1947, § 430 -- 1.

Chapter 209 of the 1947 Session Laws is carried forward and made a part of Remington's Revised Statutes of Washington and is Chapter 13, page 28, thereof.

There is a provision in the 1943 supplement (430 -- 10) that either party shall have the right to be represented by attorney that the award shall be in writing (430 -- 14) signed by the arbitrators or a majority of them, who shall promptly deliver a...