On appeal from a judgment of the Supreme Court.
For the appellant, Pitney, Hardin & Skinner (Charles R. Hardin and Frederick A. Frost, of counsel).
For the respondent, R.E. & A. D. Watson (Russell E. Watson, of counsel).
The opinion of the court was delivered by
HEHER, J. On August 2d, 1932, plaintiff and defendant entered into an agreement, in writing, whereby the former undertook, for a fixed period, to "treat" at its plant in Boonton, "by the Twitchell method, * * * raw materials" of defendant, and also "the glycerine waters resulting therefrom by means of" plaintiff's "glycerine evaporating plant," in consideration of the payment by defendant of "such proportionate part of" plaintiff's "actual cost of operating its Twitchell and glycerine evaporating plants as such operation in" defendant's "behalf bears to the total operation of said
plants, plus ten (10%) per cent. of such proportionate cost;" and plaintiff sued to recover for such services under a determination made by a third party pursuant to a clause of the contract providing for such submission of a controversy between the parties.
Defendant pleaded, among other defenses, that the processing costs assessed by plaintiff were excessive, and that, for various reasons which need not here be set out, the determination of the third party was "void."
Defendant counter-claimed (first count) for alleged overcharges for processing paid by it to plaintiff, and also for the value of crude glycerine recovered by plaintiff under the contract for which full credit had not been given, and (second and third counts) for certain items of indebtedness not here in controversy.
The trial judge directed a verdict in favor of plaintiff for $9,030.08 on the cause of action thus pleaded in the complaint, and for plaintiff on the first count of the counterclaim; and, by consent of the parties, he also directed a verdict in favor of defendant for $4,856.65 on the second and third counts of the counter-claim. Defendant appeals.
The first point made is that, since the "submission was limited to determination of processing costs and percentage of glycerine recovery under the contract," the arbitrator, in resolving the cost of handling and of selling the recovered glycerine, and in striking the balance due, had exceeded its jurisdiction.
There is no occasion to determine the question. Acknowledging that it was not thereby "substantially prejudiced," appellant states in the brief that it "does not urge that the judgment be reversed" on this ground, "unless there is also a reversal on the ground that" the arbitrator, "misconceiving its authority, made a mistake of law in respect to the determination of costs and recoveries, and determined what such costs and recoveries were as a result of" plaintiff's "negligence or inefficiency, instead of what they should have been on the basis of reasonably efficient plant operation."
This is the dispositive inquiry. The particular insistence is that the contract did not oblige ...