London v. Zachary

MOORE, P. J.

Defendant Irving Zachary appeals from a judgment for damages resulting from the breach of a contract for the sale of a wholesale wine distributing business.

In January, 1946, appellant caused to be prepared a contract in quadruplicate for the sale of such business to respondent for $3,000. Spaces were left in the instrument for the date, price and terms of payment.

After the omitted data had been orally agreed upon, respondent inserted them in two of the copies which he signed. One of the copies bearing respondent’s signature together with a second copy “not filled in” he gave to appellant with the request that the latter fill the blank spaces of the incomplete copy. After the lapse of a week appellant returned the incomplete copy with the signatures of both defendants and respondent to the latter and instructed him to “fill it in.” This was done by using the memorandum of the terms prepared by appellant’s attorney which had been inserted in the copy then held by appellant fully executed. Thereafter, appellant refused to consummate the sale.

After many discussions, appellant and respondent executed

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a contract whereby they agreed to submit all disputes to the final determination of a designated arbiter. Pursuant to such contract the parties submitted their controversy to the named arbiter who after a hearing decided that the contract of sale dated January 15, 1946, was null and void and that respondent was not entitled to recover anything from appellant. Thereupon, appellant moved the superior court to confirm, while respondent moved it to vacate, the award. After hearing, the court denied both motions. Respondent thereupon commenced the instant action for breach of contract and the court upon findings duly made entered judgment in the sum of $10,000 in favor of respondent.

Appellant first contends that the trial court erred in not sustaining an objection to the introduction of evidence on the grounds that the parties had executed a common law arbitration agreement; that the award of the arbitrator is still in force and effect, and as such, is a good defense to respondent’s action. There are two answers to such contention. The validity of the award under the statutory provisions relating to arbitration was the issue presented to the superior court which for good reasons was denied. The judgment became final five months prior to the commencement of the instant action. It is therefore res judicata and its validity cannot be effectively asserted herein.