Pervel Indus., Inc. v. T M Wallcovering, Inc., 871 F.2d 7 (2d Cir. 1989). · Go Syfert
Pervel Indus., Inc. v. T M Wallcovering, Inc., 871 F.2d 7 (2d Cir. 1989). Cases Citing This Book View Copy Cite
75 citation events (31 in the last 25 years) across 23 distinct courts.
Treatment trajectory · 1991 → 2026 · click a year to view as-of
1991 2008 2026
Cited for
At page 8 Determining scope of arbitration clauses through course of dealing25 citing casesWhere, as here, a manufacturer has a well established custom of sending purchase order confirmations containing an arbitration clause, a buyer who has made numerous purchases over a period of time, receiving in each instance a standard confirmation form which it either signed and returned or retai…6 citing courts put it this way
  • In re Fairfield Sentry Ltd., 147 F.4th 136 (2d Cir. 2025).published
    Our precedents hold that a controversy may “relat[e] to” a contract for purposes of a dispute-resolution clause when the controversy arose out of a subsequent agreement between the parties and the “relationship” between the contract and th…
  • U.S. Aprons, Inc. v. R-Five, Inc., 676 F. Supp. 2d 837 (D. Neb. 2009).published
    Co., Ltd., 189 F.3d 289, 296 (2d Cir.1999) (holding a nearly illegible arbitration clause on the reverse side of a purchase confirmation was binding on an experienced textile merchant who had purchased goods from the seller, using the same…
  • Colorado-Arkansas-Texas Distrib., L.L.C. v. Am. Eagle Food Prods., Inc., 525 F. Supp. 2d 428 (S.D.N.Y. 2007).published
    (�’[Given] well established custom of sending purchase order confirmations containing an arbitration clause, a buyer who has made numerous purchases over a period of time, receiving in each instance a standard confirmati…)
  • In re Cotton Yarn Antitrust Litig., 505 F.3d 274 (4th Cir. 2007).published
    “`[I]n industries such as fabrics and textiles . . . the specialized nature of the product has led to the widespread use of arbitration clauses and knowledgeable arbitrators”
  • Atl. Textiles v. Avondale Inc., 505 F.3d 274 (4th Cir. 2007).published
    “[I]n industries such as fabrics and textiles ... the specialized nature of the product has led to the widespread use of arbitration clauses and knowledgeable arbitrators”
  • Nobles v. Rural Cmty. Ins. Servs., 122 F. Supp. 2d 1290 (M.D. Ala. 2000).published
    See Stedor Enter., Ltd. v. Armtex, Inc., 947 F.2d 727, 733 (4th Cir.1991); Pervel Indus., Inc. v. T M Wallcovering, Inc., 871 F.2d 7, 8 (2d Cir.1989); see also McDougle, 738 So.2d at 809 .
  • E. Fish Co. v. South Pac. Shipping Co., 105 F. Supp. 2d 234 (S.D.N.Y. 2000).published
    (clause providing for arbitration of “any controversy ‘relating to’ ” a purchase and sale contract broad enough to cover claims stemming for an alleged collateral agreement to provide plaintiff with an exclusive distribu…)
  • Chelsea Square Textiles, Inc. v. Bombay Dyeing & Mfg. Co., 189 F.3d 289 (2d Cir. 1999).published
    (holding that textile buyer was bound by purchase order confirmations containing an arbitration clause where buyer did not object to provision, in part on the ground that arbitration clauses are “widespread” in textile i…)
  • In re CFLC, Inc., a Delaware Corp., Debtor. Expeditors Int'l of Washington, Inc. v. The Off. Creditors Comm., of CFLC, Inc., 166 F.3d 1012 (9th Cir. 1999).published
    The New Moon court “extended this doctrine beyond prior dealings involving actual disputes to include evidence that a party has ratified terms by failing to object.” Id. (citing Pervel Indus. v. T M Wallcovering, Inc., 871 F.2d 7, 8 (2d Ci…
  • Anchor Fish Corp. v. Torry Harris, Inc., 135 F.3d 856 (2d Cir. 1998).published
    Cf. New Moon Shipping Co. v. MAN B & W Diesel AG, 121 F.3d 24, 30-32 (2d Cir.1997) (unob-jected to terms repeated in a number of written confirmations may, over time, become part of later contracts; however, an indication of the common und…
Show 15 more citing cases
  • Huntington Int'l Corp. v. Armstrong World Indus., 981 F. Supp. 134 (E.D.N.Y. 1997).published 2 cites
    In 1989, the Court of Appeals for the Second Circuit expressly rejected that argument, stating Where ... a manufacturer has a well established custom of sending purchase order confirmations containing an arbitration clause, a buyer who has…
  • City & Cnty. of Denver v. Dist. Court ex rel. City & Cnty. of Denver, 939 P.2d 1353 (Colo. 1997).published 2 cites
    Threlkeld & Co. v. Metallgesellschaft Ltd., 923 F.2d 245 , 251-52 (2d Cir.1991) (holding that a collateral agreement between the parties had a direct relationship to the original contracts between the parties and compelling ADR where the c…
  • Akron Steel Fabricators Co. v. Krupp Plastics & Rubber Mach. (USA), Inc., 950 F. Supp. 836 (N.D. Ohio 1996).published
    Id. at 8 (citations omitted).
  • Tupman Thurlow Co. v. Woolf Int'l Corp., 3 Mass. L. Rptr. 252 (Mass. Super. Ct. 1994).published
    Wallcovering, Inc., 871 F.2d 7, 8 (2d Cir. 1989).
  • Daisy Mfg. Co. v. NCR Corp., 29 F.3d 389 (8th Cir. 1994).published
    ([wjhere, as here, a manufacturer has a well established custom of sending purchase order confirmations containing an arbitration clause, a buyer who has made numerous purchases over a period of time, receiving in each…)
  • Hatzlachh Supply Inc. v. Moishe's Elec., Inc., 828 F. Supp. 178 (S.D.N.Y. 1993).published
    (party bound by arbitration provision where well established custom of sending purchase order confirmations containing an arbitration clause existed and buyer made numerous purchases over a period of time)
  • Matter of Coastal Shipping & S. Petroleum, 812 F. Supp. 396 (S.D.N.Y. 1993).published
    An agreement to consolidate may be implied by: (1) the language of the arbitration clause, see McDonell Douglas Finance Corp. v. Pennsylvania Power & Light Co., 858 F.2d 825 , 830 (2d Cir.1988); (2) the amendments or addenda to the agreeme…
  • Drexel Burnham Lambert, Inc. v. Paul Mancino, Jr., 951 F.2d 348 (6th Cir. 1991).unpublished
    “Where, as here, a [seller] has a well established custom of sending purchase order confirmations containing an arbitration clause, a buyer who has made numerous purchases over a period of time, receiving in each instanc…”
  • Stedor Enter., Ltd. v. Armtex, Inc., 947 F.2d 727 (4th Cir. 1991).published
    Pervel Indus., Inc. v. T M Wallcovering, Inc., 871 F.2d 7, 8 (2d Cir.1989) (citations omitted).
  • David L. Threlkeld & Co. v. Metallgesellschaft Ltd. (London), 923 F.2d 245 (2d Cir. 1991).published 2 cites
    See Mitsubishi, 473 U.S. at 624, n. 13 , 105 S.Ct. at 3352, n. 13 (clause providing for arbitration of all disputes “which may arise between [parties] out of or in relation to” distribution and sales contract was broad enough to cover fede…
  • David L. Threlkeld & Co., Inc. v. Metallgesellschaft Ltd. (London), & Peter Montrose, & Terry Willsone, Metallgesellschaft Ltd. (London), Defendant- Counterclaimant-Appellant v. David L. Threlkeld & Co., Inc., Counterclaim-Defendant-Appellee, 923 F.2d 245 (2d Cir. 1991).published 2 cites
    See Mitsubishi, 473 U.S. at 624, n. 13 , 105 S.Ct. at 3352, n. 13 (clause providing for arbitration of all disputes "which may arise between [parties] out of or in relation to" distribution and sales contract was broad enough to cover fede…
  • Salis v. Am. Exp. Lines, 566 F. Supp. 2d 216 (S.D.N.Y. 2008).published 2 cites
    See Pervel, 871 F.2d at 8 (stating that where a seller “has a well-established custom of sending purchase order confirmations containing an arbitration clause, a buyer who has made numerous purchases over a period of time, receiving in eac…
  • In re the Complaint of Moran Philadelphia, 175 F. Supp. 3d 508 (E.D. Pa. 2016).published
    (Where, as here, a manufacturer has a well established custom of sending purchase order confirmations containing an arbitration clause, a buyer who has made numerous purchases over a period of time, receiving in each' i…)
  • Well Luck Co. v. FC Gerlach & Co., 421 F. Supp. 2d 533 (E.D.N.Y. 2005).published
    (Where, as here, a manufacturer has a well established custom of sending purchase order confirmations containing an arbitration clause, a buyer who has made numerous purchases over a period of time, receiving in each in…)
  • Cherry River Music Co. v. Simitar Ent., Inc., 38 F. Supp. 2d 310 (S.D.N.Y. 1999).published
    The Second Circuit has explained that a prior course of dealings material for contract purposes exists when the parties have a "well-established custom” established in “numerous purchases over a period of time.” New Moon Shipping Co. v. Ma…
At page 9 Distinguishing contract formation from exclusive distributorship arrangement7 citing cases“had no starting point, no finishing point and no subject matter.”4 citing courts quote it
At page 7 “where, as here, a manufacturer has a well established custom of sending purchase order confirmations containing an arbitration clause, a buyer who has made numerous purchases over a period of time, receiving in each instance a standard confirmation form which it either signed and returned or retain…”0 citing cases1 citing court quotes it
    Other citing cases6 with no pin cite or quoted language on record
    Retrieving the full opinion text from the archive…
    PERVEL INDUSTRIES, INC., Petitioner-Appellee,
    v.
    T M WALLCOVERING, INC., Respondent-Appellant
    61, Docket 88-7100.
    Court of Appeals for the Second Circuit.
    Mar 22, 1989.
    Published opinion
    871 F.2d 7
    1989 U.S. App. LEXIS 3792
    1989 WL 26463
    Leo G. Kailas, New York City (Milgrim Thomajan & Lee, P.C. and Karen I. Hansen, New York City, of counsel), for respondent-appellant., Donald L. Kreindler, New York City (Kreindler & Relkin, P.C. and Brett J. Meyer, New York City, of counsel), for petitioner-appellee.
    Van Graafeiland, Cardamone, Pierce.
    Cited by 50 opinions  |  Published
    VAN GRAAFEILAND, Circuit Judge:

    T M Wallcovering, Inc. appeals from an order of the United States District Court for the Southern District of New York (Edelstein, J.) staying an action brought by T M against Pervel Industries, Inc. in Tennessee state court and directing the parties to proceed to arbitration. See 675 F.Supp. 867. We affirm.

    Pervel is a manufacturer of fabrics and wallcoverings. T M is a distributor of Pervel's products. During the years that the parties dealt with each other, “numerous orders” were placed by T M with Perv-el. In each instance, Pervel followed its standard practice of returning a printed confirmation form, which contained the terms of the transaction, including a description of the product sold, the quantity, the price, the terms of payment, the routing and the consignee. The document was self-styled a “contract” and provided on its face that it was subject to the terms therein stated and those on the reverse side “including the provision for arbitration.”

    The document also provided on its face that it should become a contract for the entire quantity specified when signed and returned, or “(b) when Buyer receives and retains this without objection for ten days or (c) when Buyer accepts delivery of all or any part of the merchandise ordered hereunder. ...” Although T M’s president avers that a “large majority” of these confirmation forms were not signed and returned to Pervel, it is undisputed that some of them were. Seven such documents, several of which were signed by T M’s president, are included in the record on appeal. We agree with the district court that there was a binding arbitration agreement between the parties.

    Where, as here, a manufacturer has a well established custom of sending purchase order confirmations containing an arbitration clause, a buyer who has made numerous purchases over a period of time, receiving in each instance a standard confirmation form which it either signed and returned or retained without objection, is bound by the arbitration provision. Genesco, Inc. v. T. Kakiuchi & Co., 815 F.2d 840, 845-46 (2d Cir.1987); Manes Organization, Inc. v. Standard Dyeing & Finishing Co., 472 F.Supp. 687, 690-91 n. 4 (S.D.N.Y.1979); In re Arbitration Between Baroque Fashions, Inc. and Scotney Mills, Inc., 19 A.D.2d 873, 874, 244 N.Y.S.2d 118 (1963) (mem.). This is particularly true in industries such as fabrics and textiles where the specialized nature of the product has led to the widespread use of arbitration clauses and knowledgeable arbitrators. See, e.g., In re Arbitration Between Helen Whiting, Inc. and Trojan Textile Corp., 307 N.Y. 360, 366-67, 121 N.E.2d 367 (1954); In re Arbitration Between Gaynor-Stafford Industries, Inc. and Mafco Textured Fibers, 52 A.D.2d 481, 485, 384 N.Y.S.2d 788 (1976); Imptex Int’l Corp. v. Lorprint, Inc., 625 F.Supp. 1572 (S.D.N.Y.1986). Thus, the arbitration clause in the instant case provides that the arbitration shall proceed “in accordance with the Rules then obtaining of the American Arbitration Association or the General Arbitration Council of the Textile Industry....” Cf. Trafalgar Square, Ltd. v. Reeves Brothers, Inc. 35 A.D.2d 194, 196, 315 N.Y.S.2d 239 (1970).

    The arbitration clause also provides that it covers any controversy “relating to this contract.” It cannot be contended seriously that the amount of financial return which T M expected to receive from a contract to purchase Pervel goods bore no relationship to the purchase contract. See Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 96-97, 103 S.Ct. 2890, 2899-2900, 77 L.Ed.2d 490 (1983); Peter Pan Fabrics, Inc. v. Kay Windsor Frocks, Inc., 187 F.Supp. 763, 764 (S.D.N.Y.1959). Neither Pervel nor T M is a philanthropic organization; both are in business to make money. If, in fact, Perv-el gave T M an exclusive distributorship with a covenant not to compete, it obviously was because both parties believed it would benefit them financially to do so. It would blink reality to hold that this desire for profit bore no relationship to the purchase contract.

    [*9] Indeed, unless and until T M and Pervel entered into a contract for the purchase and sale of a particular Pervel product, the asserted exclusive distributorship arrangement for that product did not come into being; the arrangement had no starting point, no finishing point and no subject matter. It was at best an offer for a unilateral contract which was accepted, if at all, by T M’s purchase from a particular product line. The relationship between the contract of purchase and the exclusive distributorship which it created is clear and direct. The district court therefore correctly distinguished this case from Necchi S.p.A. v. Necchi Sewing Machine Sales Corp., 348 F.2d 693 (2d Cir.1965), cert. denied, 383 U.S. 909, 86 S.Ct. 892, 15 L.Ed.2d 664 (1966), upon which T M heavily relied.

    For all the foregoing reasons, the order of the. district court is affirmed.