185 A.D. 723 | N.Y. App. Div. | 1919
The appellant is a domestic corporation, and it appears by affidavit that it was organized to administer a branch of public service carried on by the government of Great Britain in providing food for its own people and for its allies during the present war, and that in performing such service it has no competitor and makes no profit, and that one of its functions was to purchase and ship flour abroad.
It entered into six contracts with the respondent by which the latter agreed to sell and deliver to it two brands of flour, viz., “ Bakerite ” and “ Newco,” with the millers’ names on the packages. By the terms of each contract the flour was to be of fair average quality of the season’s shipment of the same brand and deliveries were to be made “ free along side ocean steamer or steamers,” and four of the contracts provided that the deliveries were to be made at the port of New York and delivery under one was to be made at the port of New Orleans and under the other one-half was to be delivered at the port of New York and the other half at the port of New Orleans. Each contract contained a provision by which the buyer was authorized to require delivery at another port, and in that event there was a provision for an adjustment
The minutes of the arbitrators show that they met on the 21st of February, 1918, and that Mr. Piper, who it appears by affidavit was familiar with the facts, appeared for the appellant, and that Mi*. Spaulding, the president of the respondent, appeared for it, and the minutes contain a memorandum signed by the parties as follows: “We agree to waive our oaths.” Unsworn statements were then made before the arbitrators by Mr. Piper and Mr. Spaulding, at the conclusion of which the chairman of the arbitrators asked if there were any further questions, and there being none, the
On the hearing before the arbitrators the contracts were produced and it appeared that all of the flour had been delivered and the purchase price had been paid at the time of delivery as provided in the contracts. The contracts contained no reference to samples. Mr. Piper for the appellant stated to the arbitrators that the controversy was with respect to the quality of the flour delivered and that a claim for an allowance therefor had been made and refused; that all of the purchases were made on samples submitted by the respondent and retained by the appellant, which were used for the purpose of comparison and that when a sample was nearly exhausted it was renewed; that he produced samples of the two grades of flour which had been furnished by the respondent and retained by the appellant with the dates on which they were received by the appellant, and that with respect to the samples of “ Newco ” he produced part of the original sample, but that the original sample of “ Bakerite ” was exhausted and the sample he produced was part of one received from respondent on September twenty-sixth; that these samples were used in making comparisons with samples from the cars received at the seaboard and forwarded to the appellant; that he produced a trunk-full of samples so received from the cars to which the appellant had taken exception, with a list of the cars by numbers from which they were taken, and he stated to the arbitrators the nature of the business conducted by the appellant; that owing to conditions incident to the war there was necessity for prompt delivery and the port at which delivery was required could not be determined in advance, and that appellant had endeavored to keep a check on the quality of the flour delivered by securing samples through authorized sampling agencies at the ports of delivery and by obtaining official inspection where there appeared to be necessity therefor whenever this could be done during the hurried delivery of the flour and sailing of the vessels from the ports of delivery, and that in consequence the
The position taken by the respondent before the arbitrators and on this appeal is that by the provisions of the contracts and the terms of the arbitration agreement, the arbitrators were confined by the rules of said exchange to making an award based on samples taken by the official inspectors of said exchange. Both parties knew that no such samples were taken with respect to the flour which is the subject of
It follows that both orders should be reversed, with ten dollars costs and disbursements, and the motion to vacate the award denied and the motion to confirm granted, with ten dollars costs.
Dowling, Smith, Page and Shearn, JJ., concurred.
Order denying motion to confirm award reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs. Order granting motion to vacate award reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.