Plаintiffs instituted this proceeding in the superior court under section 1282 of the Code of Civil Procedure to enforce an agreement to arbitrate controversies arising under a written contract for the sale of 3,900 cases of No. 10 tomato paste from defendant’s 1942 production. The contract was entered into on August 20, 1942, by defendant as seller and Pan American Food Corporation, plaintiffs’ assignor as buyer and was on a form adopted by the Canners’ League of California and approved by the National-American Wholesale Grocers’ Association. It contained the following provisions: “Any controversy arising out of this contract shall be settled by arbitration in New York, Chicago or San Francisco. In the absence of agreement by the parties arbitration shall be held in the above city nearest to the point where the goods are located. Arbitrations shall be held before and under the rules of the joint arbitration boards appointed or approved by the National-American Wholesale Grocers’ Association, the National Food Brokers’ Association and the National Canners’ Association. The arbitrators shall assess the costs of the arbitration and the decision shall be final and binding upon both parties, who hereby agree to comply therewith. No unimportant variations in the execution of this agreement shall constitute basis for a claim. Each party hereto hereby agrees that a judgment of the United States District Court in and for the District within which the award was made shall be entered upon the award made, but the State Courts shall have sole jurisdiction of enforcing this agreement to arbitrate and any arbitration award in all eases in which the United States District Court shall not have jurisdiction.”
In their petition to enforce the arbitration agreement plaintiffs alleged that Pan American Food Corporation, a New York corporation, was voluntarily dissolved on December 29, 1942; that all of the assets of the dissolved corporation were assigned to plaintiffs as its sole stockholders; that plaintiffs formed a copartnership under the name of Pan American Food Company and carried on the business of the corporation without change in management or personnel. With respect to the claim to be arbitrated plaintiffs’ petition asserts: “That
The court found “That on or about December 29, 1942 . . . Pan American Food Corporation was voluntarily dissolved, at which time all of the assets of said corporation were transferred to plaintiffs. That said plaintiffs were the sole stockholders of said corporation; that plaintiffs did thereupon form a co-partnership under the name of Pan American Food Company. . . . That on or about August 20, 1942, defendant entered into a contract in writing for the sale by defendant to said Pan American Food Corporation of 3900 cases of tomato paste. . . . That it is not true that since the dissolution of said Pan American Food Corporation, or at any other time, . . . said plaintiffs have been or ever were the owners of said contract or any rights arising thereunder; That it is true that Riverbank Canning Company never did make any deliveries under said contract; that no actual controversy has arisen between said Riverbank Canning Company and plaintiffs out of or by virtue of said contract. That it is not true that since the dissolution of Pan American Food Corporation, Riverbank Canning Company has repeatedly or at all recog
The trial court based its interpretation of the nonassignable clause solely on its written terms and made its other findings solely upon the correspondence between Pan American Food Corporation and defendant and between plaintiffs and defendant and their respective counsel. No other evidence was before the court, and the case was submitted on briefs. It is settled in this state than an appellate court is not bound by a trial court’s construction of a contract or other written instrument based solely upon the terms of the instrument.
(Estate of Platt, 21
Cal.2d 343, 352 [
Plaintiffs contend that what they acquired by the assignment was only a claim for money damages for nonperformance and that such claim is not within the scope of the clause prohibiting assignment of the contract. It is established that a provision in a contract or a rule of law against assignment does not preclude the assignment of money due or to become due under the contract
(Butler
v.
San Francisco Gas etc. Co.,
It is not necessary to determine which construction of the contract is correct, for even if it be assumed that defendant could determine the date of delivery, it would not follow that the contract was nоt breached at the end of December when the assignment occurred. The correspondence between Pan American Food Corporation and defendant leaves no doubt that defendant had decided that whatever delivery it made would be before the end of December, 1942. On December 1, 1942, it refused to deliver on the ground that requisitions by the government made it impossible to deliver any goods of the kind sold under the contract. On November 14, 1942, defendant answered the urgent requests of Pan American Food Corporation for delivery of goods under the contract by the following letter: “Our deliveries on tomato paste sales will not exceed 35%. As yet our pack has not reached that much, but we bought some goods from other packers, and so we are able to make 35% delivery on tomato paste packed in tin. . . . On the glass pack, we will not make any delivery, because this year we had a lot of trouble. We are ready to forward shipment of one-third of your purchase; we have packed the goods for you and it is ready, but unfortunately
If a seller, in the absence of a contract provision specifying the date of delivery, is entitled to determine that date, he is bound to deliver the goods within a reasonable time.
Plaintiffs contend that defendant waived its rights under the nonassignable clause by entering into negotiations for a compromise and making a compromise of the claim for damages for nonperformance with plaintiffs, knowing that plaintiffs claimed the rights under the contract as successors to the corporation that entered intо the contract with defendant. It is settled in this state that a party benefited by a clause against assignment in a contract or lease may waive his right thereunder by dealing with an assignee with regard to the contract or lease, with knowledge of the assignment.
(California Packing Corp.
v.
Lopez,
Plaintiffs also contend that construed in the light of the purposes it was designed to serve and the meaning that traders may reasonably be expected to give its terms (Civ. Code, §§ 1643, 1644, 1647, 1648; Code Civ. Proc., §§ 1860, 1865;
In re City and County of San Francisco,
“Where a bilateral contract in terms forbids assignment, it becomes a matter of interpretation as to what is meant. Is it intended that a duty under the contract shall not be delegated, or is it intended that a right shall not be assigned, or are both prohibitions intended?” (2 Williston, Contracts, rev. ed., 1217.) Even if it is assumed that the prohibition against assignments relates to rights rather than duties, it does not necessarily apply to all claims under the contract or to all transfers of the contract rights. It is established that in the absence of language to the contrary in the contract, a provision against assignment does not govern claims for money due or claims for money damages for nonperformance; (see cases cited,
supra,
p. 340) that a covenant against assignment in a lease is not broken by chаnges in the -firm of the lessee incident to the admission of a new partner or the withdrawal of an old partner or by the dissolution of a partnership and transfer of the rights under the lease with all other assets of the partnership to one of the partners
(Safeway Stores, Inc.
v.
Buhlinger,
No interest of the seller would be served by preventing the rights under this contract for the sale of standard goods from passing to a copartnership continuing the business of the corporation formed by its sole stockholders, who were entitled to thе assets of the corporation upon its dissolution. (Civ. Code, § 401a; N. Y. Gen. Corp. Law, § 117;
North Hollywood Mortgage Co.
v.
North Amer. Bond & Mortgage Co.,
We have considered defendant’s contention that notice of appeal was not filed by plaintiffs within the period of 60 days after entry of judgment as required by rule 2(a) of the Rules on Appeal. Plaintiffs’ petition was heard by the superior court on September 15, 1944. After oral argument and--submission of briefs, the court on October 21, 1944, announced “that said petition be and the same is hereby denied and the Defendant’s motion for dismissal is granted.” The record does not reveal when this order was entered in the minutes. On October 27th, the court made another order that defendant prepare and submit findings of fact and conclusions of law. On January 5, 1945, the court heard the matter for the purpose of settling the findings and adopted defendant’s findings with immaterial changes. The minutes, after stating the order, recite: “Thereupon the Respondent objected to the signing or filing of any Findings of Fact and Conclusions of Law or any Judgment or Decision other than to set aside the Cоurt’s previous order directing preparation of Findings and said objection was overruled on the ground that the order of October 21, 1944, was intended solely to indicate
The judgment is reversed.
Gibson, C. J., Shenk, J., and Carter, J., concurred.
As I read the record in this ease, the evidence shows that there was no breach of thе contract by the seller prior to the assignment, the seller did not waive his right to object to the validity of the assignment, and the as
Although I agree that a general nonassignability provision, such as is found in the contract here in controversy, does not preclude an assignment of a chose in action for breach of contract, the present case does not fall within this rule because there is no proof of a breach of the contract by the seller prior to the assignment. Assuming that, by the terms of the agreement, the seller could determine the date of delivery, according to the correspondence between the parties, the seller did not decide to make any delivery before December 29th, except a limited one which was rejected by the partnership. And although in the letter of December 1, 1942, the seller stated that it could not make delivery as agreed, this statement does not justify the conclusion, as a matter of law, that the canner then determined to breach the contract. The most that may be said is that the letter is susceptible of such an inference. On the other hand, the letter reasonably may be read as a statement by the seller agreeing to make future deliveries as soon as practicable and within a reasonable time. Under such circumstances, the findings of the trial court must be upheld.
Estate of
Platt,
There are other reasons for denying the partnership relief upon the theory that a breach of contract occurred prior to the assignment. It is conceded that the parties submitted the issue as to whether the assignment is valid to the trial court “without reservation.” Upon the partners’ theory of their rights, necessarily included in that issue is the question as to whether performance by the seller prior to the assignment was excused. Clearly, the contract’s provision as to delays caused by war excused the seller’s failure to deliver and, therefore, prevented or excused a breach of contract.
Furthermore, assuming that the corporation transferrеd a chose in action for breach of contract, the partnership’s remedy would be an action for damages and not a proceeding to enforce an agreement to arbitrate. The partners are entirely
The second ground for the decision is that the seller waived its rights under the nonassignability clause by entering into negotiations for a compromise and making a compromise of the claim for damages for nonperformance. Evidence is summarized in the opinion which indicates that the seller waived its rights in this regard. But a careful reading of the correspondence clearly shows that the canner did not intend tо waive its rights under the nonassignability clause.
In its first letter replying to the demands of counsel for the partnership, the seller’s attorney stated, under date of June 10, 1943, that “We have not yet had an opportunity to assemble all the facts surrounding this matter,” and he expressed the desire of his client to keep the goodwill of its customers. About three weeks later he wrote that “. . . after a discussion of the facts, we are forced to the conclusion that your client has no cause of action in this matter.” Shortly thereafter, the seller offered to enter into a “new contract” and the partners agreed to this disposition of the controversy.
But the terms of the “new contract” were never agreed upon by the parties. The negotiations carried on into September when the partners stated that they would accept “. . . 1½ cars of tоmato paste in No. 10 containers at the prevailing market price provided delivery is made prior to the end of September, 1943.” In their letter they added: “You, of course, will understand that our offer to settle upon this basis is without prejudice to our rights, in the event that your client does not make the delivery prior to the end of September.” Confirmation of this offer was requested, but the seller, by a telegram dated October 27, 1943, rejected the proposal. The partnership then made a demand for arbitration. The seller replied that the contract was not assignable but it expressed a willingness to arbitrate with the corporation.
This correspondence shows, without conflict, that the seller did not waive its rights under the nonassignability clause. It repeatedly and consistently took the position that the partnership had no rights by virtue of the assignment. The offer to deal with the partnership related only, in the express words of the seller, to the entering into of a “new contract” between the parties. This “new contract” was never consummated. And if the correspondence reasonably is susceptible of the
The decision reversing the judgment is also placed upon the ground that the rights of the seller are not affected by the nonassignability clause of the contract when a corporation is the buyer and upon its dissolution the contract rights are assigned to the shareholders who continue the business of the corporation as copartners. I cannot concur in that conclusion. Furthermore, the partnership would not have had the right to arbitrate the issue as to assignability, even if there had been no waiver. .
A well established rule is that a contract is not assignable where the parties expressly stipulate to the contrary.
(La Rue
v.
Groezinger,
The majority opinion also, in effect, disregards the corporate entity. This cannot be done unless the “observance of the fiction of separate existence would, under the circumstances, sanction a fraud or promote injustice. Bad faith in one form or another must be shown before the Court may disregard the fiction of separate corporate existence.”
(Hollywood Cleaning & P. Co.
v.
Hollywood L. Service,
In
New York Bank Note Co.
v.
Hamilton Bank Note Engraving & Printing Co.,
Accordingly, when, as in the present case, the contract of the parties includes а provision prohibiting assignment, their agreement in that regard should be upheld and enforced. As the court said in
City of Omaha
v.
Standard Oil Co.,
55 Neb.
The rule that a provision prohibiting assignment does not preclude a transfer by operation of law cannot aid Trubowitch and his associates. The assignment relied upon by them was made in connection with the voluntary dissolution of the corporation in which they were the sole stockholders. And not one of the cases cited in the majоrity opinion supports the statement that if an assignment of contract rights results merely from a change in the legal form in which the business is conducted, the court may determine whether such a transfer affects the interests of the parties to be protected by the prohibition against such action. Bach of these decisions concerns a contract having no nonassignability clause. And most of them, by implication at least, recognize the rule to be that, if a contract contains a stipulation against assignment, it ordinarily prevents the assignment of contract rights from one legal form of business to another.
Nor are the cases relating to an assignment of a lease controlling. They concern the rule that a condition involving a forfeiture of rights under a lease must be strictly interpreted against the party for whose benefit it is created. No forfeiture of rights is involved in the present ease. Furthermore, in
Randol
v.
Scott,
This principle was stated and applied in
Hanes
v.
Coffee,
There can be no logical distinction drawn between the issues pleaded by the canning company in bar of Trubowitch’s demand for arbitration and the situation of the parties in the Hanes case. Paraphrasing the language of this court in deciding the earlier controversy, if the allegations in regard to. the assignment of the contract are sustained, the contract,
The field of arbitration is a limited one and .presupposes a judicial determination of any disputed issue which concerns the question as to whether there is a valid contract between the parties at the time of the demand for arbitration. Professor Williston states the law in this regard as follows: “When the claim, however, is that the contract is invalid because of fraud, duress, failure of consideration, rescission, cancellation, accord and satisfaction, there is much doubt on the matter, but it is probable that the court will first pass on the issue of fraud, etc., even if the arbitration clause seems broad enough to allow the arbitrators themselves to pass on those issues of fraud.” In a footnote to this statement, he adds: “It seems clear that the court should first pass on these issues befоre ordering arbitration. . . .” (Williston on Contracts, § 1920, pp. 5370, 5371.)
This rule rests upon fundamental principles. In the event that a defendant in resisting a proceeding to compel arbitration pleads a defense concerning the validity of the contract which would bar an award against him upon the merits of the controversy, a finding in his favor by arbitrators would destroy the only basis of their jurisdiction, which is a valid contract to arbitrate. Such an issue, therefore, requires judicial determination. “If the defendant is found correct in his contention, judgment for the defendant could be granted. If the finding is made for the plaintiff, unless the defendant has other issues to raise at the arbitration, judgment for the plaintiff should be given, or if the defendant is to raise issues other than his already presented defense at the arbitration, the arbitrators should be informed of the decision of the court on the motion to compel and be bound thereby.” (Phillips, The Paradox in Arbitration Law: Compulsion as Applied to a Voluntary Proceeding, 46 Harv.L.Rev. 1258, 1270-1272.)
New York was the first state to enact a statute broadly allowing the arbitration of disputes otherwise requiring judicial determination. Its courts have refused to allow issues of fraud in the making of a contract to be decided by arbitra
The position of the canning company in the present ease is substantially the same as that taken by the defendant in
Japan Cotton Trading Co.
v.
Farber,
Each of these cases stands for the proposition that in every proceeding for the enforcement of a contract by which the parties have agreed to the determination by arbitration of
For these reasons, I would affirm the judgment.
Sehauer, J., and Spence, J., concurred.
Respondent’s petition for a rehearing was denied July 17, 1947. Edmonds, J., Sehauer, J., and Spence, J., voted for a rehearing.