Charlton Co. v. Aerfab Corp.

Opinion

JEFFERSON (Bernard), J.

Plaintiff Charlton Company of California, a California corporation, filed a complaint alleging that defendant, the Aerfab Corporation, had breached an oral settlement agreement. Defendant moved to stay further proceedings in the suit and to compel arbitration of the dispute. (Code Civ. Proc., § 1281.2.) After considering the affidavits, declarations and points and authorities filed by the parties, the trial court entered, in a minute order, its ruling denying defendant’s motion. Defendant appeals.

1

The record before us shows that plaintiff purchased from defendant, a New York corporation, fabric which defendant shipped to plaintiff in California, pursuant to written contracts executed by the parties in 1971 and 1972. The dispute arose because of alleged defects in the fabric, used by plaintiff to upholster furniture. The written contracts all contáined an arbitration clause, which provided, in pertinent part, that “[a]ny controversy or claim arising under or in relation to this order or contract, or any modification thereof, shall be settled by arbitration.”

In its complaint, plaintiff made no reference to the written contracts previously executed by the parties, but alleged that the dispute over the fabric had been settled orally by the parties in October 1972. In opposition to defendant’s motion to compel arbitration and stay proceedings, plaintiff filed the declarations of its president, Morris M. Loeb, and an attorney, Robert Weil, asserting that the oral contract had been

[811]

entered into between Loeb and defendant’s president, Goldfarb, in Weil’s presence. Defendant filed the affidavit of Goldfarb, denying that any such oral settlement had been made.

We note that the trial court’s ruling denying defendant’s motion (petition) to compel arbitration is appealable pursuant to Code of Civil Procedure section 1294, subdivision (a). (See

Berman

v.

Renart Corp.

(1963) 222 Cal.App.2d 385 [35 Cal.Rptr. 218].)