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

• Decision Date: 02 July 1951
• Docket Number: WASHBURN-WILSON,No. 7689,7689
• Citation: 233 P.2d 809,71 Idaho 421
• Court: Idaho Supreme Court
• Parties: H. S. CRAMER & CO., Inc. v.SEED CO.

Page 809

233 P.2d 809

71 Idaho 421

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

No. 7689.

Supreme Court of Idaho.

July 2, 1951.

E. G. Elliott, Boise, for appellant.

Estes & Felton, Moscow, for respondent.

GIVENS, Chief Justice.

This action is a continuation of H. S. Cramer & Co., Inc., v. Washburn-Wilson Seed Co., 68 Idaho 416, 195 P.2d 346. Upon the remand, answer was filed and the matter heard upon a stipulation of facts.

The arbitrators awarded three amounts: $400 on car No. C&NW 81550 and $200 on car No. NCSTL 16196, because of cracked seed coats; and $980.21 as appellant's costs of procuring letter of credit demanded by respondent, in connection with the underlying original agreement whereby appellant contracted to purchase 2,000 tons of peas from respondent. Respondent contends this item was not included in the arbitration agreement; therefore, the arbitrators had no jurisdiction to make such an award.

The correspondence admitted in evidence by stipulation shows:

Letter of May 7, 1946, Ptfs. Ex. 4, from appellant to respondent enclosing an agreement for arbitration signed by appellant and requesting respondent to sign it and forward with check for $15.00 to Mr. Clark, Chairman of the Arbitration Committee, in Seattle, with this concluding clause: 'We will also send to the above Committee a complete statement of our case against you.'

Letter of May 10, Ptfs. Ex. 5, in response thereto by respondent advising the agreement had been signed and forwarded with the requested check and concluding with this clause: 'We presume upon receipt of this letter you will forward your check and your statement with regard to your claim.'

Letter of May 10, Ptfs. Ex. 3, from respondent to Mr. Clark, enclosing the agreement and check, and:

'We understand H. S. Cramer & Company will forward their check directly to you within the next few days along with a statement of their case against us.

'While we are not fully familiar with the procedure of arbitration followed by your Committee, we assume that when this statement has been received by you a copy will be submitted to us for our reply. We await your further advice.'

The Agreement of Arbitration, dated May 7, 1946, and referred to in the correspondence was as follows:

'We, the undersigned, hereby agree to submit and do voluntarily submit to the Arbitration Committee appointed in the City of Seattle, Washington, by the National American Wholesale Grocers' Association and the National Food Brokers Association, and indorsed by the National Canners' Association, for the consideration and adjudication of the said Arbitration Committee, a controversy now existing between us in regard to

allowances claimed by H. S. Cramer & Co., Inc. under contracts No. 1353 of December 4, 1945 and No. 1361 of January 14, 1946 of Washburn-Wilson Seed Company, Moscow, Idaho

'We hereby agree with each other to abide by such decision as the said Committee may render in the premises and consent that the arbitration and decision may be by a majority of the sub-committee of three appointed to act in this case.

'We agree that the loser shall pay the expenses of the arbitration, including the fees of the Committee, and also that, upon request of the Chairman of the said Arbitration Committee, and before action is taken by the Committee, each of us will deposit with the Chairman Fifteen (15) Dollars for the fees of the Committee, upon the understanding that his deposit will be returned to the party in whose favor the decision is made.

'And we further agree that the findings of the said Arbitration Committee shall be as binding upon us, our personal representatives, successors and assigns as would be a decision of the Court of Last Resort of the State of Washington.

'And we do hereby authorize and empower the said Arbitration Committee, or such members thereof as act in the present arbitration, to determine what allowance, if any, shall be awarded;

'And we do further agree that the party against whom the allowance shall be awarded shall promptly pay the amount thereof to the other.

'Witnesses:

H. S. Cramer & Co., Inc.

202 Produce Exchange, New York, 4,

N. Y.

'(Corporate seal or seals)

B. Abraham President

Washburn-Wilson Seed Co.

By Herman Wilson, Jr.'

Letter of May 20, Ptfs. Ex. 1, from Mr. Clark to respondent acknowledging receipt of its letter of the 10th and--'I have received a letter from H. S. Cramer & Co., Inc. dated May 16th covering their position in reference to their claim against you which they desire to be arbitrated as per agreement which you signed.

'I cannot submit a copy of this statement to you for your reply. It will be necessary for you to file your statement in writing or personally appearing before the Arbitration Committee which has not set a date and will await a statement from you.'

Letter of May 23, Ptfs. Ex. 2, from respondent to Mr. Clark, acknowledging the receipt of his letter of the 20th and--'We note that you cannot submit to us a copy of the statement entered with you by the H. S. Cramer & Company, wherein they established their position in reference to their claim against us. Without this statement, we then must presume that their claim as submitted to you is the same as was submitted to us by their letter of April 30, 1946, as follows': Referred to $800 for cracked seed coats on two cars and $450 on two other cars, total $1250.00, and--'Assuming that the above is their claim, we wish then to enter our statements as follows on the basis of this assumption': then followed exculpatory statements to the effect the condition and quality of peas came within the tolerance agreed upon by the parties. Award on the condition of the peas in not involved because respondent paid the $600 allowed therefor. Respondent's letter of May 23 continued:

'With further reference to Cramer's claims, we wish to point out that a saving on these contracts was reflected to Cramer by ourselves in the amount of $1,508 in freight rate. Cramer's letters of credit were established to cover shipment of 2,080,000 pounds at a rate of 40 1/4 cents per hundred pounds and 3,091,200 pounds at 33 cents per hundred pounds freight. The difference in the two freight rates was caused by the different original country shipping points from which these Peas were being drawn on transit to our processing plant. We, however, in our shipments, in an effect to be of assistance to Cramer, were able to use the higher priced inbound transit to apply on domestic shipments which we were making of our own, and as a result on the total shipment made to Cramer of 5,171,200 pounds, the lower freight rate of 33 cents per hundred pounds was assessed. Thus, as indicated, a saving was made on the contract by us for Cramer of $1,508.

'In conclusion, Cramer have never given us any statement or evidence of damages suffered by them on these two contracts as a result of deliveries made, and further, even though we admit a possible claim on their part of $400 on contract No. 1353, the saving which we reflected to them in freight rate of $1,508 at a like expense to ourselves on our domestic shipments more than offsets this $400 claim, and also more than offsets the total possible claim entered by Cramer of $1250.'

Letter of January 18, 1946, Ptfs. Ex. 14, from appellant to Mr. Wolff, evidently a borker or agent of some kind in New York City, acting perhaps for one or both of the parties herein in connection with certain matters in connection with the 2,000-ton contract, in addition to consignment and shipping directions, is as follows:

'We are giving instructions to the Bank of Manhattan Co., New York to open a Letter of Credit with their correspondents in Spokane, Washington, Seattle-First National Bank, in favor of seller, payable against the following documents:

1) Railroad Bill of Lading (original and one memorandum copy)

2) Commercial Invoice in triplicate

3) Federal Grading Certificate in quintuplicate

4) Weight Certificate in quintuplicate'

Letter of June 8, Ptfs. Ex. 6, from respondent to Mr. Clark acknowledging receipt of the Findings and Award made by the Arbitration Board June 3, 1946, copies evidently having been sent to both parties, accepting the decision relative to the grades, i. e., the $400 and $200, but----

'However, we are taking exception to the first portion of your award pertaining to expenses paid by H. S. Cramer & Co. to the Bank of Manhattan covering letters of credit and other expenses, etc., etc. amounting to $980.21.

'This particular item had never been raised in dispute and we, therefore, did not offer to submit it to arbitration. This should not have been entered by H. S. Cramer & Co. along with those items in dispute. As you may recall, we had requested a copy of the claims as submitted by H. S. Cramer & Co. but this was refused by the Arbitration Board. We, therefore, had only the letter written by the H. S. Cramer & Co. stating their grievances upon which we could file our reply, and to which grievances we agreed to submit to arbitration.

'In none of our correspondence with them was the point of the first portion of your award ever mentioned. Upon your notifying us that this portion of the award was outside of your jurisdiction, as per the foregoing, we will forward to you our check for $600, in payment of the claims of the H. S. Cramer & Co., which we had agreed to submit to arbitration.'

Letter of June 14, Ptfs. Ex. 16, from respondent to appellant enclosing a copy of respondent's letter of June 8, above noted.

Letter of July 15, Ptfs. Ex. 20, from appellant to respondent as follows:

'We beg to refer to our letter of June 10th. We have not yet received your check for $1,580.21 covering our debit note dated June 10th as per the findings and award of the Arbitration Board with regard to the above two contracts.

'May we draw your attention to paragraph (A) of arbitration signed by you and by us:

"And we do hereby authorize and empower the said Arbitration Committee,...