
    James H. Hummel, Appellant, v. Isaac Stern et al., Respondents.
    (New York Superior Court—General Term,
    December, 1895.)
    Contract — To perform work to the satisfaction of the other, party—Performance.
    Where a contract for work of a mechanical nature provides that it shall be done to the satisfaction of the - other party, the latter- cannot, defeat a recovery by arbitrarily declining to be satisfied; but' a recovery' may be had upon proof that the work was done in a. nroper manner and in a way that ought to have satisfied him.
    Appeal by plaintiff from judgment entered against him upon dismissal of complaint at Trial Term.
    
      Root & Clarke (B. Winthrop and H. L. Stimson, of counsel), for appellant.
    Hoadly, Lauterbach & Johnson (F. P. Delafield, of counsel), for respondents.
   McAdam, J.

The action is on a contract whereby the plaintiff .agreed to put in the defendants’ premises- a ventilating machine for $350. The condition thereof affecting the present contention is as follows: “We guarantee to ventilate .receiving room to your satisfaction; ' otherwise, we' will remove wheel and other material without cost to you, and put receiving room- in as good order as we found it, without any charge to you:”

The plaintiff "proved that the work had been done in a proper manner, and rested. The defendants moved to dismiss the complaint, and the motion was granted.. The reason for the dismissal does not 'clearly appear, though it is evident that the true ground was that the work was not done to. the defendants' satisfaction, as stipulated' in the agreement.-

The - plaintiff was not bound to show that the defendants Were actually satisfied with the ventilation. He. was o'nly •hound to show that the work -was done in a proper manner and in a way that ought to have.satisfied.the defendants, and this was a question for the jury. Logan v. Berkshire Assn., 46 N. Y. St. Repr. 14; Duplex Safety Boiler Co. v. Garden, 101 N. Y. 387; Russell v. Allerton, 108 id. 292; Doll v. Noble, 116 id. 233.

In Logan v. Berkshire Assn., supra, the plaintiffs were to furnish a hot water pressure tank, and the work was to be done “to the entire satisfaction of the defendant.'” The complaint was dismissed on the ground that “ it has not been • shown that it was done to the satisfaction of the defendant.” Held, error.

The defendants in Duplex Safety Boiler Co. v. Garden, supra, contracted to pay only .when they “ were satisfied that the boilers, as' changed, were a success,” and they claimed that this was a question for them .alone to determine. ■ The court said :. “Performance must.,, of course, accord witlf.the terms of the contract; but if the defendants are at liberty_to determine for themselves when they- are satisfied, there would be no obligation, and, consequently, no agreement which, could be enforced. It cannot be presumed that the plaintiff entered upon its work with' this understanding,- nor that the defendants supposed they were to be the sole judge in their own cause..”’

In Russell v. Allerton, supra, the court said: “ We do not think that the effect of the words hi the charter party, ‘ charterers tó approve the ventilation,’ was' to leave the subject of the ventilation of the ship to the absolute, unreasonable and wholly arbitrary decision of the charterer.”

The contract under consideration in Doll v. Noble, supra, required the work to be done “in"the best, workmanlike mánner * * * and to the entire satisfaction ” of the party for whom it was done. Held, that if done in the best workmanlike manner, such party could not defeat a recovery of the price agreed to be paid by arbitrarily and unreasonably declaring that it was not done to his'Satisfaction.

Deferring to contracts that the work shall be done to the satisfaction of the recipient party, Folger, J., in Brooklyn v R. R. Co., 47 N. Y. 479, says: “ Such satisfaction is not an arbitrary or capricious one.. It has its measure by which it can be filled. That which the - law shall say a contracting .party ought in .reason to be satisfied with, that the law will say he is satisfied with.” See, also, Folliard v. Wallace, 2 Johns. 395 ; Butler v. Tucker, 24 Wend. 449; Miesell v. Ins. Co., 76 N. Y. 119.

The.rule is different of course where the contract involves a question of personal taste or individual preference. Duplex Boiler Co. v. Garden, 101 N. Y. 390; Gray v. Bank, 30 N. Y. St. Repr. 824.; 38 id. 171. Such cases are, making ' a suit of clothes (Brown v. Foster, 113 Mass. 136); undertaking . to fill a particular place as agent (Tyler v. Ames, 6 Lans. 280); making a bust (Zaleski v. Clark, 44 Conn. 218); painting a portrait (Hoffman v. Gallagher, 6 Daly, 42; Moore v. Goodwin, 43 Hun, 534); making a lithographic design (Gray v. Bank, 30 N. Y. St. Repr. 824; 38 id. 169); giving lessons in drafting patterns. Johnson v. Bindseil, 15 Daly, 492.

The work done by the plaintiff was óf a mechanical nature, requiring great expense in ■ moving and putting up the machinery; and it would necessitate a like expenditure to take down and remove the same. It is' evident, therefore, that the right to reject was not left to the whim or caprice ■of the defendants, but was to. depend” on some objection founded upon reason ; and as this involved a question peculiarly for the jury it should not have been withdrawn from their consideration.

The case is unlike one where a horse or other thing which may be returned without altering its condition is given on trial; there the return might be enforced under the contract to take back if the thing proves unsatisfactory.

Having been nonsuited, the plaintiff is entitled to the most favorable inferences deducidle from the evidence, and all •questions of fact ¿re to "be deemed established. in his favor. ■ So construed the record shows error.

For these reasons, without considering "the other questions presented, the judgment appealed from must be reversed ;and a new trial ordered, "with costs to the appellant to abide "the event.

Gildersleeve, J., concurs:

Judgment reversed and new trial ordered, with costs to -appellant to abide event.  