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Mitchell v. Alfred Hofmann Inc.

Decided: January 15, 1958.

HERBERT MITCHELL AND JOHN J. MONIGAN, JR., RECEIVER, PLAINTIFFS-APPELLANTS,
v.
ALFRED HOFMANN, INC., A CORPORATION, AND ALFRED HOFMANN & CO., A CORPORATION, DEFENDANTS-RESPONDENTS



Goldmann, Freund and Conford. The opinion of the court was delivered by Freund, J.A.D.

Freund

Plaintiffs appeal from an order denying their application to compel defendants to resume arbitration of controversies between Herbert Mitchell and the defendants and from an order denying plaintiffs' motion for a new trial or, in the alternative, to reopen the judgment to consider further affidavits and grant the order of arbitration sought. The first order, which had the effect of a final judgment, was entered in the Superior Court, Law Division, after a trial on the pleadings, affidavits and exhibits pursuant to R.R. 4:85-1 et seq.

The primary plaintiff is Mitchell, and plaintiff Monigan joins in the proceedings only insofar as his participation as Mitchell's appointed receiver is necessary to effect full and complete relief. Hereinafter "plaintiff" refers to Mitchell.

For the purposes of this proceeding the material facts are not in dispute. The issue is whether the plaintiff, by his failure to prosecute arbitration proceedings which had been

instituted by him, has lost the right to arbitration by reason of laches or waiver.

On February 2, 1942 Herbert Mitchell was employed by the defendants as a non-exclusive sales representative and was to receive a commission of 10% of the net sales price of any orders or re-orders resulting from his solicitations. The letter agreement between the parties expressly provided that:

"any dispute or difference of any character which may arise between us will be settled and determined by arbitration in accordance with the Arbitration Laws of the State of New Jersey."

A dispute arose concerning commissions and on October 8, 1945 the parties entered into a stipulation for arbitration which, among other things, provided as follows:

"(1) All matters in dispute between the parties will be submitted to arbitration in these proceedings.

(2) The respective parties will accept any and all decisions, rulings or awards of the Board of Arbitrators in these proceedings as final and binding upon them for all purposes, and will abide by the final decision of the Board of Arbitrators to the same and like extent as though it were a final judgment in a court of last resort on appeal."

The arbitration stipulation provided for the selection of arbitrators, procedures and the filing of pleadings and discovery in order to develop the issues to be submitted to arbitration.

No time limitation was fixed within which either party was obligated to demand arbitration or, if begun, within which it had to be completed.

To plaintiff's complaint, defendants filed a counterclaim alleging that plaintiff had been overpaid $54,806. After issues were joined, a board composed of three arbitrators, Robert D. Grosman, nominated by plaintiff, David L. Cole, nominated by defendants, and Augustus C. Studer, selected by Grosman and Cole, conducted hearings in 1946. The last actual hearing was held ...


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