J. Dunn & Sons, Inc. v. Paragon Homes of New England, Inc., No. 5828

CourtSupreme Court of New Hampshire
Writing for the CourtPER CURIAM; GRIFFITH
Citation110 N.H. 215,265 A.2d 5
Decision Date30 April 1970
Docket NumberNo. 5828

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265 A.2d 5
110 N.H. 215
Joseph DUNN
No. 5828.
Supreme Court of New Hampshire.
April 30, 1970.

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Wiggin, Nourie, Sundeen, Nassikas & Pingree, Dort S. Bigg, and J. R. Falby, Jr. (orally), Manchester, for plaintiffs.

[110 N.H. 216] Harkaway, Barry & Gall, Nashua (Aaron A. Harkaway, Nashua, orally), for defendant.


Petition by defendant under RSA 542:1, 2 for arbitration and to stay certain actions brought by the plaintiffs against the defendant arising out of a contract between them pertaining to the sale of pre-cut homes and garages as well as building supply and home equipment products.

On December 28, 1963, plaintiff Joseph F. Dunn entered in an agreement with the defendant distributor 'as its exclusive sales agent' in the Manchester area for 'Paragon' products. On June 18, 1964, the parties agreed to include the name of plaintiff

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J. Dunn & Sons, Inc. in their 'Distributor Agreement.'

Clause 13 of this agreement reads as follows: 'In the event of any dispute or disagreement of any nature whatsoever concerning this agreement, including but not limited to the terms of this Agreement, the performance thereof, the breach thereof, or its interpretation, the same shall be arbitrated by the American Arbitration Association in the City of New York, the jurisdiction of which Association and the enforcement of it orders both parties do hereby consent. In the event of such arbitration, the costs shall be borne equally between the parties.'

Plaintiff J. Dunn & Sons brought an action in three counts against the defendant. The gist of the first two counts, in assumpsit and case respectively, is that the defendant in the light of the contract between the parties, so conducted itself as to cause irreparable harm to their reputations and business prospects, causing them loss of profits, embarrassment and mental anguish.

Count Three called a 'Plea of Assumpsit' alleges that defendant is indebted to plaintiff for commissions on certain sales contracts.

The action of Joseph Dunn against the defendant contains two counts only and they are identical to counts one and two in the action of the corporation previously set out herein.

The Trial Court (Griffith, J.) denied defendant's petition for arbitration as to counts one and two in each action as a matter of law, and as to count three in the corporation's action as a matter of discretion. Defendant's exceptions thereto were reserved and transferred by Morris, J.

RSA 542:1 provides in part as follows: 'A provision in any written contract to settle by arbitration a controversy thereafter [110 N.H. 217] arising out of such contract * * * shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.' No claim is made that grounds for revocation exist in this case. RSA 542:2 provides for a stay of the trial of any suit involving an issue referable to arbitration until 'such arbitration has been had in accordance with the terms of the agreement.'

It is well settled law here and elsewhere that the scope of an arbitration clause in a contract presents a question of law for the court. Brampton Woolen Co. v. Local Union 112, 95 N.H. 252, 256, 61 A.2d 796; Kantrowitz v. Perlman, 156 Conn. 224, 240 A.2d 891, 893 (Conn.1968); Old Dutch Farms, Inc. v. Milk Drivers & Dairy Emp. Union, 359 F.2d 598, 600 (2nd Cir., 1966); 5 Am.Jur.2d, Arbitration and Award, s. 15. Such a clause is to be interpreted so as to make it speak the intention of...

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29 cases
  • Lawton v. Great Southwest Fire Ins. Co., 7876
    • United States
    • Supreme Court of New Hampshire
    • September 27, 1978
    ...in a contract action. Monge v. Beebe Rubber Co., 114 N.H. 130, 134, 316 A.2d 549, 552 (1974); Dunn & Sons, Inc. v. Paragon Homes of New England, Inc., 110 N.H. 215, 218, 265 A.2d 5 (1970). Our holding that counts 1 and 2 of the declaration in this case do not state a cause of action in tort......
  • Young v. Abalene Pest Control Services, Inc., 81-029
    • United States
    • Supreme Court of New Hampshire
    • April 2, 1982
    ...is "on a contract or in tort is not controlled by the form of the action but by its substance." Dunn & Sons, Inc. v. Paragon Homes of New Eng., Inc., 110 N.H. 215, 217, 265 A.2d 5, 7 (1970); see Guerin v. N. H. Catholic Charities, 120 N.H. 501, 505, 418 A.2d 224, 227 (1980). In this case, t......
  • Sewer v. Paragon Homes, Inc., Civ. No. 364/1972.
    • United States
    • United States District Courts. 3th Circuit. District of the Virgin Islands
    • December 7, 1972
    ...and trial courts have been permitted to consolidate such claims in the legal forum, see J. Dunn & Sons, Inc. v. Paragon Homes of New England, 110 N.H. 215, 265 A.2d 5 (S.Ct.N.H.1970). The latter case, however, seems best understood as upholding a discretionary power in the trial judge, rath......
  • Grand Summit Hotel Condo. Unit Owners' Ass'n v. L.B.O. Holding, Inc., 2017-0673
    • United States
    • Supreme Court of New Hampshire
    • September 18, 2018
    ...on the substance of the factual allegations, not the legal theory asserted. See Dunn & Sons, Inc. v. Paragon Homes of New Eng., Inc., 110 N.H. 215, 217, 265 A.2d 5 (1970) ; Genesco, Inc. v. T. Kakiuchi & Co., Ltd., 815 F.2d 840, 846 (2d Cir. 1987).Attitash argues that the Association's clai......
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