This section contains the nature of the case and procedural background.

Schoettle Co. (D) was up for sale. Kardon was interested in purchasing the company and five of its subsidiaries and began negotiations. The parties entered into a written agreement under the terms of which Kardon 2 (buyer) purchased all the issued and outstanding capital stock of D and all its subsidiaries. The written agreement was 25-pages. The buyer's obligation to perform was based on a number of conditions precedent. Under 9(a) 'As of the time of closing the financial condition of the Company and its subsidiaries in the aggregate shall be no less favorable than the financial condition shown on the statements of said corporations dated June 30, 1954, and warranted to be true and complete in paragraph 5(e) hereof. D also made a number of representations and warranties, as under 5(g), that there had not been any changes in D’s financial condition other than changes in the ordinary course of business, none of which were materially adverse. The total purchase price was $2,100,000 of which amount $187,863.60 was set aside under paragraph 11 of the agreement to be held by an escrow agent to indemnify the buyer against 'the liabilities of D by reason of any and all provisions of this agreement.' The buyer has presented a claim against the escrow fund for $69,998.42. The payment of this claim is being disputed by D. The parties submitted the dispute to arbitration, and the buyer was awarded $3,182.88. The judgment was entered, and the buyer appealed.

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