William S. Gray & Co. v. Western Borax Co.

This is an appeal from a judgment in favor of the defendant, appellee here, holding the plaintiff, appellant, not entitled to recover on a claimed breach of contract employing appellant as appellee’s exclusive United States agent for the sale of the latter’s borax products.

The contract contained the following arbitration' clause: “In case any dispute shall arise between the parties hereto as to the construction of any provision of this agreement, or as to the fulfillment hereof by either party thereto, -such dispute shall be submitted to three disinterested arbitrators, one.,to .be selected by each of the parties to this -agreement, and the third by the two -arbitrators so chosen, who shall render their decision in writing and serve a copy upon each of the parties hereto, and the same shall be-binding upon them' and conclusive as to the matter. in controversy.” ’ • '

•• Appellee demurred to the complaint' on. the- ground that the. court had no jurisdiction to proceed because, inter, alia it failed to- show the arbitration had been waived. Before decision the demurrer was withdrawn and the failure to arbitrate -prior to suit was waived by the stipulation for a reference to…