{ "id": 1559084, "name": "O'NEAL et al. v. GEO. E. GREECE LUMBER CO.", "name_abbreviation": "O'Neal v. Geo. E. Greece Lumber Co.", "decision_date": "1934-08-13", "docket_number": "No. 3931", "first_page": "492", "last_page": "494", "citations": [ { "type": "official", "cite": "38 N.M. 492" }, { "type": "parallel", "cite": "35 P.2d 314" } ], "court": { "name_abbreviation": "N.M.", "id": 8835, "name": "Supreme Court of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "38 N. M. 94", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1559083 ], "weight": 2, "opinion_index": -1, "case_paths": [ "/nm/38/0094-01" ] }, { "cite": "106 N. W. 1122", "category": "reporters:state_regional", "reporter": "N.W.", "opinion_index": 0 }, { "cite": "143 Mich. 481", "category": "reporters:state", "reporter": "Mich.", "case_ids": [ 1501859 ], "opinion_index": 0, "case_paths": [ "/mich/143/0481-01" ] }, { "cite": "13 L. R. A. 263", "category": "reporters:federal", "reporter": "L.R.A.", "opinion_index": 0 }, { "cite": "27 N. E. 769", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 0 }, { "cite": "154 Mass. 77", "category": "reporters:state", "reporter": "Mass.", "case_ids": [ 806982 ], "opinion_index": 0, "case_paths": [ "/mass/154/0077-01" ] }, { "cite": "9 Am. St. Rep. 598", "category": "reporters:state", "reporter": "Am. St. Rep.", "opinion_index": 0 }, { "cite": "18 N. E. 804", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 0 }, { "cite": "126 Ill. 329", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5404195 ], "opinion_index": 0, "case_paths": [ "/ill/126/0329-01" ] }, { "cite": "4 F.(2d) 670", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1682517 ], "pin_cites": [ { "page": "672" } ], "opinion_index": 0, "case_paths": [ "/f2d/4/0670-01" ] }, { "cite": "264 U. 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M. 94", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1559083 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/38/0094-01" ] } ], "analysis": { "cardinality": 447, "char_count": 5793, "ocr_confidence": 0.479, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.0582750191227365 }, "sha256": "9e4809375f6b71833700a814646526a4e9ba708cfbb307a068231e45296cb4a5", "simhash": "1:aa447bcda905a285", "word_count": 1005 }, "last_updated": "2023-07-14T22:29:00.087305+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "WATSON, O. J., and SADLER and BIORLEY, JJ., concur.", "ZINN, J., did not participate." ], "parties": [ "O\u2019NEAL et al. v. GEO. E. GREECE LUMBER CO." ], "opinions": [ { "text": "HUDSPETH, Justice.\n\u25a0 Appellant, defendant below, maintains that provision for a resort to arbitration in the contract sued upon is a condition precedent to the right of plaintiffs-appellees to bring an action on said contract. The learned trial judge held the contrary to be the law, refused to give instructions embodying appellant\u2019s theory on this point, and rendered judgment on the verdict of the jury in favor of plaintiff for $1,463.13. The contract was drawn by Mr. G. O. O\u2019Neal of appellees\u2019 firm, the material part of which reads as follows: \u201cParty of the First Part agrees to check, grade and receive all lumber immediately on delivery by the Party of the Second Part, and to pay the Party of the Second Part on the First of each Month for all lumber delivered during the preceding Month, and agrees to allow the Party of the Second Part privilege of investigation on all dispute in grades, and in case an agreement cannot be reached in regard to grade, a disinterested inspector agreeable to both parties will be called, and his decision will be final, both parties agreeing to abide by this decision.\u201d\nOnly the lumber delivered between September 29, 1931, and January 8, 1932 \u2014 more than 400,000 board feet, the exact amount being in dispute \u2014 is involved. Statements showing the classification according to appellant\u2019s grader were made and checks issued for each month\u2019s delivery. Appellees cashed these checks. On motion of both parties the trial court ruled that there was no accord and satisfaction, and that ruling is not before us for review. Appellant .argues notwithstanding this ruling, which it is admitted is the law of the case, that the contract was divisible, and that the only reasonable construction of the contract is th\u00e1t disputes, if any, as to classification of the lumber were to be settled promptly after receipt by appellees of the monthly statements of grades and tender of payment for the month\u2019s delivery; that before judicial proceedings would be available to appellees they were required to promptly make a reasonable effort in good faith to agree upon a \u201cdisinterested inspector.\u201d Although protests had been made by appellees from time to time, the first formal demand for a reclassification by a \u201cdisinterested inspector\u201d was made January 21, 1932, after payment in full according to appellant\u2019s books, and when only 130,000 feet of the lumber was available for reclassification. It is urged that this came too late, and appellant was justified in its refusal to agree to the demand. The divisibility of the contract has little bearing on the question to be determined.\nThe provision in the contract for the employment of a \u201cdisinterested inspector\u201d to settle disputes as to grades appears to be a collateral agreement rather than a condition precedent to appellees\u2019 right to sue. In 1 Restatement of the Law of Contracts, 375, \u00a7 261, the rule is laid down: \u201cWhere it is doubtful whether words create a promise or an express condition, they are interpreted as creating a promise; but the same words may sometimes mean that one party promises a performance and that the other party\u2019s promise is conditional on that performance.\u201d Illustration No. 2 under said rule reads as follows: \u201c2. A, an insurance company, issues to B a policy of insurance containing promises by A that are in terms conditional on the happening of certain events. The policy contains this clause: \u2018provided, in case differences shall arise touching any loss, the matter shall be submitted to impartial arbitrators, whose award shall be binding on the parties.\u2019 This is a promise to arbitrate and does not make an award a condition precedent of the insurer\u2019s duty to pay.\u201d See, also, V. 2 Restatement of Contracts, 1055, \u00a7 550.\nIn Oregon Short Line Railroad Co. v. Teton Coal Co. (C. C. A.) 35 F.(2d) 919, 923, the rule is clearly stated: \u201c \u2018Where, however, the contract contains no covenant, express or implied, indicating an intention that arbitration of disputes shall be a condition precedent to a right of action, but there is simply a covenant to pay and another covenant to arbitrate, they are distinct and collateral, and the covenant to arbitrate is not in such a case a condition precedent.\u2019 9 C. J. 758. See, also, 5 C. J. p. 45; Hamilton v. Home Ins. Co., 137 U. S. 370, 383-386, 11 S. Ct. 133, 34 L. Ed. 708; Red Cross Line v. Atlantic Fruit Co., 264 U. S. 109, 121, 44 S. Ct. 274, 68 L. Ed. 582; Tatsuuma Kisen, etc., v. Prescott (C. C. A.) 4 F.(2d) 670, 672.\u201d Other cases in point are: Birmingham Fire Ins. Co. v. Pulver, 126 Ill. 329, 18 N. E. 804, 9 Am. St. Rep. 598; Badenfeld v. Mass. Mutual Accident Association, 154 Mass. 77, 27 N. E. 769, 13 L. R. A. 263; Chadwick v. Ph\u0153nix Accident, etc., Association, 143 Mich. 481, 106 N. W. 1122, 8 Ann. Cas. 170 and note.\nHaving reached the conclusion that the arbitration provision did not preclude a resort to the court, it becomes unnecessary for us to consider whether the provision was waived by the parties or whether appellant has complied with the agreement for arbitration on its part.\nThe costs, including the costs of the transcript brought into the case on the writ of certiorari for diminution of the record after the decision in this cause reported in 38 N. M. 94, 28 P.(2d) 523, will be taxed to appellant.\nFinding no reversible error, the judgment will be affirmed; it is so ordered.\nWATSON, O. J., and SADLER and BIORLEY, JJ., concur.\nZINN, J., did not participate.", "type": "majority", "author": "HUDSPETH, Justice." } ], "attorneys": [ "W. A. ICeleher and Theo. E. Jones, both of Albuquerque, for appellant", "R. H. Hanna, Fred E. Wilson, and William Brophy, all of Albuquerque, for appellees." ], "corrections": "", "head_matter": "35 P.(2d) 314\nO\u2019NEAL et al. v. GEO. E. GREECE LUMBER CO.\nNo. 3931.\nSupreme Court of New Mexico.\nAug. 13, 1934.\nRehearing Denied Sept. 17, 1934.\nSee, also, 38 N. M. 94, 28 P.(2d) 523.\nW. A. ICeleher and Theo. E. Jones, both of Albuquerque, for appellant\nR. H. Hanna, Fred E. Wilson, and William Brophy, all of Albuquerque, for appellees." }, "file_name": "0492-01", "first_page_order": 528, "last_page_order": 530 }