Clogston v. Schiff-Lang Co., Inc.

THE COURT.

A hearing was granted in the case after decision by the District Court of Appeal, Second Appellate District, Division One. Upon further consideration we adopt the opinion of Mr. Justice Houser as the opinion of this court. It reads as follows:

“Among the provisions of a contract that was entered into between plaintiff and defendant was the following:

“ ‘Any differences arising between the parties of this contract shall be settled by arbitration, and buyer shall accept goods with such allowance or award as shall be determined by such arbitration, each shipment to be considered separately. ’

“Thereafter, ‘differences’ having arisen between the parties to the contract, without first having arbitrated such ‘differences’, and in the absence of any attempt so to do

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on the part of plaintiff, he commenced an action in the superior court against defendant for damages, which plaintiff claimed he had sustained by reason of the alleged breach of the contract on the part of defendant.

“As far as the same is applicable to the facts herein, section 1280 of the Code of Civil.Procedure provides that: ‘A provision in a written contract to settle by arbitration a controversy thereafter arising out of the contract . . . shall be valid, enforceable and irrevocable, save upon such grounds as exist at law or in equity for the revocation of any contract; . . . ’

“By section 1284 of the Code of Civil Procedure it is provided that: ‘If-any suit or proceeding be brought upon any issue arising out of an agreement providing for the arbitration thereof, the court in which such suit or proceeding is pending, upon being satisfied that the issue involved in such suit or proceeding is referable to arbitration, shall stay the action until an arbitration has been had in accordance with the terms of the agreement; provided, that the applicant for the stay is not in default in proceeding with such arbitration.’

“Defendant demurred to the complaint in the action and, in accordance with the rules of the superior court, attached to said demurrer its memorandum of ‘points and authorities’ in which was contained the statement that: ‘The complaint shows upon its face that there was an agreement in writing to arbitrate any differences arising under the contract sued upon, and there is no allegation that an arbitration has been had or that plaintiff has offered to submit to arbitration.’ (Citing authorities.)