Commercial Factors Corp. v. Kurtzman Bros.

DORAN, J.

This is an action on a judgment obtained by appellant in the State of New York which confirmed an arbitration award given by a New York arbitrator. At the California trial, respondents attacked the jurisdiction of the New York court, and the trial court found that no arbitration contracts had been entered into between the parties;

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that respondents had not been personally served with process in New York, and that the judgment in that state was invalid.

In January, 1951, one of the respondent partners, whose place of business is in Los Angeles, went to New York to purchase merchandise, and visited the show rooms of William H. Prendergast Mills, Inc., plaintiff’s assignor. After selecting certain goods the salesman took a pad of order blanks and wrote thereon the styles selected by the Kurtzmans. Three of the four orders were signed by one of respondent’s partners but not by the seller; the fourth order blank was signed by neither buyer or seller.

The order blanks each contained the provision: “This order becomes a contract only when signed by the seller or confirmed in writing by the seller. . . . The undersigned hereby orders the above goods upon the terms as stated, including the terms and conditions printed on the back of the contract and forming a part hereof.” On the reverse of each order blank appears the printed provision that “Any complaint, controversy or question which may arise with respect to this contract that cannot be settled by the parties thereto, shall be referred to arbitration,” and that “Rules of the Piece Goods Selling Division of the Wool Textile Industry” are made a part of the contract.

It was the respondents’ testimony that these order blanks were together in a pad; that the buyer was unable to see the reverse of the order blanks, that no copy was then furnished to the buyer but one was later mailed; that there was no conversation concerning the arbitration provisions printed on the reverse and the buyer’s attention was not called to such provisions. Merchandise was later shipped to respondents to the amount of about $12,000; payment of about $8,500 was made but the balance was not paid “Because the goods were rejected, imperfect goods.” The accounts were assigned to the appellant.