S. Kornblum Metals Co. v. Intsel Corp.

• Decision Date: 08 January 1976
• Citation: 342 N.E.2d 591,38 N.Y.2d 376,379 N.Y.S.2d 826
• Parties: , 342 N.E.2d 591 In the Matter of S. KORNBLUM METALS CO., Appellant, v. INTSEL CORPORATION, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 826

379 N.Y.S.2d 826

38 N.Y.2d 376, 342 N.E.2d 591

In the Matter of S. KORNBLUM METALS CO., Appellant, v. INTSEL CORPORATION, Respondent.

Court of Appeals of New York.

Jan. 8, 1976.

Mortimer Goodman, New York City, for appellant.

Robert G. Sugarman, New York City, for respondent.

JONES, Judge.

We agree with the majority at the Appellate Division that there was warrant in this record for the jury verdict that the parties here had agreed to submit the dispute which has arisen between them to arbitration.

This litigation arises out of an agreement between the parties for the sale and purchase of zinc. When the zinc was not delivered, the purchaser commenced an arbitration proceeding to recover damages for the alleged default of the seller. Thereupon the seller instituted the present proceeding to stay arbitration and to vacate the demand therefor. Supreme Court ordered a trial of all issues raised by the petition. After such plenary trial, the jury unanimously found for the purchaser. Judgment was thereupon entered denying the application for a stay of arbitration. The Appellate Division affirmed, as do we.

Viewing the evidence before the jury in the light most favorable to the successful party, as we must, we conclude that there was sufficient evidence, as a matter of law, to sustain each of the three conclusions reached by the jury in response to specific questions submitted to them by the trial court, and thus to sustain the verdict in favor of the purchaser Appellant could succeed on this appeal only if it appears that as a matter of law there was insufficient evidence to support the jury verdict. Nor was reversible error otherwise committed on the trial.

The parties to this controversy have been doing business together for some 15 years. There was evidence that it was the custom of the trade for agreements for the sale of metals routinely to be made orally, by telephone, and thereafter confirmed by delivery of purchase orders. Five prior purchase orders of Intsel, dated June 14, 1971, May 4, 1972, December 4, 1972, December 21, 1972, and May 5, 1973, respectively, were received in evidence. Each covered a purchase of zinc, and each contained an arbitration provision.

On Friday, September 21, 1973 Mr. Kornblum, a member of the selling partnership, here appellant, telephoned Mr. Bauer, manager of sales in the nonferrous metals division of Intsel, the purchasing corporation, to inform him that the partnership had a possibility of obtaining 250 tons of prime western zinc. Mr. Bauer expressed an interest and asked what price would be required to purchase the zinc. When Mr. Kornblum responded that 32 cents per pound would be needed, Mr. Bauer made a firm bid at that price for 250 tons. Mr. Kornblum then told Mr. Bauer that he would advise him whether he was successful in obtaining the zinc. Later in the day Mr. Kornblum telephoned for Mr. Bauer in consequence of which call Mr. Bauer made an entry in his daily log that Intsel had purchased the 250 tons of zinc at 32 cents per pound. Mr. Bauer then caused a purchase order to be prepared and mailed that afternoon to Kornblum covering the transaction. That purchase order for the first time included all the essential terms of the transaction. In addition to its other terms it specifically referred on its face to the arbitration clause set forth in full on the reverse side as follows: '9. Any controversy arising under or in relation to this agreement or any modification thereof shall be settled by arbitration in the City of New York in accordance with the Arbitration Laws of the State of New York and the Rules then obtaining of the American Arbitration Association, and judgment on the award may be entered in any court, State or Federal, having jurisdiction.' For the first time, the purchase order also specified that the zinc was to be strapped in bundles.

After the weekend, on Monday, September 24, 1973, Mr. Bauer telephoned Mr. Kornblum to acknowledge receipt of the latter's Friday afternoon call and Messrs. Bauer and Kornblum 'agreed during the conversation that we had a firm transaction for 250 tons of prime western zinc'.

Later in the day, Mr. Kornblum, on receipt of the purchase order which had been...