TUTTLE, Circuit Judge:
This appeal attacks a judgment confirming an arbitration award in favor of the defendant, Continental Grain Company (Continental) and against plaintiff-appellant, T & R Enterprises, Inc. (T & R). The appellant claims that the district court erred in (i) ordering the parties to proceed to arbitration in the face of an asserted dispute over the existence of an agreement to arbitrate, an issue which it claims should be submitted to a jury for resolution; (ii) entering judgment on the arbitration award under an agreement that did not explicitly provide for judicial enforcement; and (iii) confirming an award allegedly made in a different United States court district. We affirm.
T & R, engaged in poultry and poultry-related operations in Alabama, contracted with Continental, a Delaware corporation, to purchase feed corn in four deliveries, to take place over several months, at a price fixed at the date contracts were made. The orders were first placed by telephone, then reduced to writing by four sales confirmation slips sent from Continental to T & R. These slips were all signed by T & R's president and returned to Continental. Although arbitration was not mentioned in any of the telephone conversations between T & R and Continental, the face of each standard form sales confirmation slip bore the following legends: "subject to the Rules of Grain and Feed Dealers National Association;" and, in block capitals: "THE TERMS PRINTED ON THE BACK HEREOF
In January 1975, Continental began to deliver corn under the first of the four contracts. In February, after accepting the first shipments, T & R gave notice purporting to cancel all four contracts on the grounds that the corn delivered did not meet contract standards of quality and that Continental gave insufficient assurance of satisfactory performance in the future. When Continental refused to accept the cancellations, T & R filed suit in district court seeking to rescind the contracts. Continental defended by moving under the Federal Arbitration Act, 9 U.S.C. § 3 (1970), to stay the proceedings pending arbitration. The judge considered affidavits from both parties and a deposition taken by the plaintiff and granted the stay on August 4, 1975. Although Continental had not requested additional relief, the district court ordered the parties to proceed to arbitration, an order governed by § 4 of the Act.
Thereafter, the parties proceeded with the arbitration including the filing of briefs by T & R which later refused to comply with a rule of the National Grain and Feed Association that the parties execute an arbitration contract. Thereupon, in April 1976, Continental went back into district court seeking "further relief." T & R then filed a "motion to expunge the record" for the first time objecting to the previous orders on the ground that the court did not follow the steps required by § 4 of the Federal Arbitration Act. The court acknowledged
The arbitration hearing was held in Birmingham, Alabama, the district in which the proceedings were pending, and they resulted in an award adverse to T & R. Continental moved for judicial confirmation and enforcement of the arbitral decree under § 9 of the Federal Arbitration Act. On December 13, 1977, almost three years after this dispute first arose, the district court granted Continental's motion and reduced the award to judgment. This appeal followed.
T & R's first challenge to the judgment confirming the arbitration award is that the district court erred in "summarily" ordering T & R to arbitrate—a § 4 order—on the basis of a § 3 motion for a stay of proceedings pending arbitration. While the district court later recognized this error, T & R urges that the judge only added insult to injury by treating Continental's motion for additional relief as a § 4 motion and using it summarily to decide an issue that, under § 4, is a jury issue.
While it is, of course, preferable for the courts carefully to observe statutes and rules of procedure, we see no prejudice, harm or inconvenience to T & R resulting from the procedures that the court followed here. Because of the conduct of the complaining party in not timely objecting to the lack of statutory basis for the court's first or second order to arbitrate and because the court considered T & R's late claim to a jury trial, even though not timely made, we hesitate to elevate form over substance.
Section 4 of the Federal Arbitration Act provides in relevant part that "[i]f the making of the arbitration agreement . . . be in issue, the court shall proceed summarily to the trial thereof." Under § 4, the party allegedly in default of an agreement to arbitrate receives five days' notice, in writing, of the petition to compel arbitration, and has an opportunity to demand a jury trial on the issue of the making of the arbitration agreement. T & R claims that the district court's acknowledged failure to follow these procedures in entering the first orders compelling arbitration deprived it of the statutory and constitutional right to demand a jury trial to resolve the allegedly disputed existence of the arbitration agreement.
The court did acknowledge the error of its ways, stating that it was "in agreement with the plaintiff that the defendant's motion for a stay should not have been treated as a motion to compel arbitration under 9 U.S.C. § 4, in that the procedural requirements of that section were not complied with." Treating Continental's motion for further relief, then pending, as a § 4 petition, the court found that "the plaintiff has not raised a genuine issue as to the making of the agreement for arbitration or the failure to comply therewith, and that therefore the parties are due to proceed without further delay to arbitration in accordance with the terms of their agreement." The court thus gave the same consideration to T & R's request for a jury trial as it would have, had the procedures under § 4 been followed.
At first blush, it appears that in some cases a party positioned as was T & R here
Continental places its support of the trial court's action on three grounds: (a) T & R itself elected to file the original action in the district court as a non-jury action; (b) T & R received repeated orders to arbitrate and elected not to demand a jury on the issue of "making of the arbitration agreement" until after the second such order and after commencing to comply with the order; (c) the "making of the arbitration agreement" was not genuinely at issue, as the four contracts containing the arbitration agreement, signed by T & R, were the very contracts declared upon in T & R's original complaint, identifying those instruments as evidencing the four transactions sued upon.
We need not decide whether T & R's failure to request a jury trial at the time it filed its complaint amounted to a waiver of a jury, once the provisions of the Arbitration Act were invoked by the other party. We consider that the conduct of T & R in not challenging the trial court's order as failing to give it an opportunity to elect a jury trial until Continental filed its third request for an arbitration order, and its failure even then to place its objection on the absence of due process notice for hearing purposes sufficiently validates the court's proceeding to determine whether there was a true issue as to the "making of the arbitration agreement," without more.
Here, when the court issued its initial order directing T & R to arbitrate the dispute, the latter company responded by filing a motion to stay the effect of the order on two grounds totally unrelated to any of the issues now before the Court. The principal ground was that some of the terms of the arbitration rules of the Association were in conflict with Alabama statutes. No mention was made by T & R in this motion to the effect that the original order had not been requested under § 4 and thus lacked adequate notice and an opportunity for T & R to request a jury trial. Thereafter, after the court denied this motion, the court again ordered T & R to arbitrate. Thereafter, for several months, the parties initiated the arbitration proceedings until T & R again demurred. Thereupon, Continental filed its motion asking for "further relief." Thereafter, on April 16, 1976, approximately one year after the date on which it originally filed the complaint, T & R filed a motion "to expunge the record." Now, for the first time, it pointed out that the court's original order to arbitrate, issued August 4 of the previous year, was defective in that it was not based on a petition by Continental under § 4 and it did not give the five days' notice prescribed in that section. Still, it did not object to the issuance of the August 4 order on the ground that it had denied T & R of any opportunity to prepare for a hearing on the issue of the execution of the arbitration agreement or any other issue. It did complain of its inability to make an election to have a jury trial.
As above indicated, the trial court heeded the motion to the extent of holding that the August 4, 1975 order directing arbitration was invalid because not based upon a § 4 petition, but the court also considered T & R's complaint that it had not had an opportunity to request a jury trial. In its order, the court considered the Continental motion for further relief as a § 4 petition and the court then considered all of the documents that had been submitted by the parties prior to the first order. The court then decided on the basis of the documents, including the deposition, T & R had "not raised a genuine issue as to the making of the agreement for arbitration." The court thereupon entered its third order directing that arbitration be completed.
Rule 12(g), headed "Consolidation of Defenses in Motion" provides:
Then Rule 12(h), "Waiver or Preservation of Certain Defenses" provides as follows:
[Emphasis added.]
Thus, as stated by Wright and Miller:
Wright & Miller, Federal Practice & Procedure Civil, Volume 5, 855. Since the notice requirements may well be equated with service of process of ordinary pleadings, it should be equally clear that the failure of a party to object at the first opportunity available to it to raise the question by motion amounts to a waiver of whatever rights the party may have had. We would not be so ready to assume a waiver unless the circumstances demonstrated beyond any doubt that the party now objecting to the want of notice had actually received all the benefits it would have been entitled to with the notice. Here, the only objection made by T & R the third time around, was that it had been denied the right to a jury trial. It did not object that it had been unable to prepare for a hearing on the issue of the making of an arbitration agreement.
But, as we have already pointed out, T & R lost nothing, because of the trial court's giving full consideration to its request for a jury trial. The court, presumably using the same standards that would apply in any case in which a motion for directed verdict or a motion for judgment n. o. v. is considered, concluded that there was no substantial issue of fact to be submitted to a jury.
This then brings us to the decisive question whether the party resisting arbitration has put the existence of an agreement to
We are rather persuaded by Almacenes Fernandez S. A. v. Golodetz et al., 148 F.2d 625 (2d Cir. 1945), which stated:
In that case, the parties had both actually signed the contract incorporating the arbitration agreement. The same court has recently approved this holding in Interocean Shipping Co. v. National Shipping & Trading Corp., 462 F.2d 673 (2d Cir. 1972), a case in which the court found that there was an issue to be tried by the jury. Here, T & R has not made a sufficient showing to entitle it to a trial by jury on demand. The contracts underlying this litigation and containing the arbitration clauses were not only signed and returned by T & R but they were asserted in the original complaint filed by T & R to be the contracts between the parties. The only item in the record approaching "an unequivocal denial that the agreement to arbitrate was made" is T & R's assertion that it believed the telephone conversations with Continental's agent constituted the real contracts and that the subsequently exchanged signed confirmation slips cannot modify or add essential terms. This argument is contrary to the universally prevailing rule that, absent allegations of misrepresentation, fraud, or deceit, one who executes a written contract is bound by its terms. This court has expressly held that this principle applies to prevent a party from avoiding the effect of his written acceptance of a contract which expressly, above his signature, on the face of the contract, incorporates the provisions on the reverse side including promises to arbitrate. Southeastern Enameling Corp. v. General Bronze Corp., 434 F.2d 330 (5th Cir. 1970).
We conclude that on the record before the Court it would have been required to direct a verdict requiring arbitration if a jury had been empaneled under the provisions of § 4.
Appellant's second basis for attacking the judgment is that the district court exceeded its statutory authority in enforcing the award. Section 9 of the Federal Arbitration Act provides that confirmation of an award is appropriate only where "the parties in their agreement have agreed that a judgment of the court shall be entered upon the award . . . " T & R argues that the language in the contracts before us, providing that "the [arbitrator's] decision shall be final and binding" is insufficient to indicate that the parties consented to the entry of judgment on the award.
We look to I/S Stavborg v. National Metal Converters, Inc., 500 F.2d 424 (2d Cir. 1974) for a parallel case. In that case, the agreement provided that the decisions of the arbitrators should be final, as is true here. The court there said:
So, too, here, the power of the federal court in the Northern District of Alabama was invoked by T & R when they initially filed the complaint on these contracts in that jurisdiction. We conclude that, once invoked, the power of that court to enter a judgment on the arbitrator's award which was an outgrowth of the original action was sufficient to satisfy the jurisdictional requirements. See, also, for the discussion of a somewhat similar construction by the Supreme Court in a maritime case, Marine Transit Corp. v. Dreyfus, 284 U.S. 263, 276-77, 52 S.Ct. 166, 169-70, 76 L.Ed. 282 (1931).
Finally, T & R complains that the trial court lacked jurisdiction to make a final judgment in light of the provision of § 9 of the Act: "If no court is specified in the agreement of the parties, then such application may be made to the United States Court in and for the district within which such award was made."
Although it is uncontested that the arbitration proceedings took place in Birmingham in accordance with the explicit requirement by the district court's order, appellant points to the fact that the signatures of the three arbitrators appear above their addresses in three different cities and three different states, none of which is in the Northern District of Alabama. From this appellant argues that the arbitration award was "made" somewhere other than the Northern District. Because there is no proof as to where the arbitration committee actually concluded its work or signed the award appellant's contention must fall for that reason alone. In any event, we do not think the word "made" would necessarily be construed to apply to the place where a document was signed rather than the place where the proceedings were held and concluded.
The judgment is AFFIRMED.
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