Susquehanna Silk Mills v. Fair Waist & Dress Co.

Headnote

Contract — sale —• arbitration — application to compel arbitration — defense that contract is void for lack of mutuality.

Matter of Susquehanna Silk Mills v. Fair Waist & Dress Co., Inc., 217 App. Div. 727 , affirmed.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered June 4, 1926, which unanimously affirmed an order of Special Term directing the appellant to proceed to arbitration under a contract for the sale by respondent and purchase by appellant of a quantity of silk, which contract contained a provision for arbitration of all disputes. Appellant contended that the contract was void for want of mutuality in that under the third provision thereof the seller retained the option at any time, with or without notice, to increase, decrease, cancel or limit the deliveries. The provision read as follows:

“ 3. The credit specified herein or which may hereafter be extended, both as to time and amount, as well as deliveries under this order, are subject to increase or decrease, cancellation or limitation at any time by the seller, or L. F. Dommerick & Co., with or without notice, and the merchandise herein described or such part as the seller may offer from time to time shall at its option be payable in cash on tender or offer of delivery, which the buyer agrees to pay, and upon default the seller may, at his option, hold the goods for the buyer’s account who shall be liable for the purchase price thereof, or sell the same for the account of the buyer, but at his risk and expense, giving credit for the amount realized therefor upon the purchase price thereof, or cancel the order in writing, but in no event shall the buyer be released from

Ms liaMlity hereunder unless the order be cancelled by the seller in writing.”