
    Moses Johnson, App’lt, v. Herman F. Bindseil, Resp’t.
    
      (New York Common Pleas, General Term,
    
    
      Filed February 3, 1890.)
    
    1. Contract—Performance.
    Plaintiff agreed to give certain instructions to defendant to continue each evening except Sunday; until he became proficient in the work. Payment was to be made by instalments provided defendant was satisfied with plaintiff’s performance. The instructions continued for ten evenings, when plaintiff was taken sick and never thereafter offered to continue the instructions. Held, that he failed to show performance on his part and was not entitled to recover.
    3. Same.
    To entitle him to recover it was also necessary to show that defendant was satisfied ; that he ought to have been so is not sufficient.
    Appeal from judgment of the fourth district court.
    
      A. Kahn, for app’lt; M. Stuyvesant, for resp’t.
   Bischoff, J.

This action was brought to recover a balance alleged to be due for the services performed under a contract to instruct the defendant in the art of drafting patterns by scales. Trial was had and resulted in judgment for defendant, from, which plaintiff has appealed to this court. The parties differ in some respects as to the terms of the contract, but a preponderance of proof clearly establishes the contract asserted by defendant, which was as follows: On January 8, 1889, plaintiff agreed to teach defendant the art of drafting patterns by scales, in lessons of two and one-half hours each, which were to commence on the evening of the same day and to continue on the succeeding consecutive evenings (Sundays excepted), until defendant had acquired proficiency in the art. In consideration of the services to be performed by the plaintiff the defendant agreed to pay him the sum of $100, of which twenty-five dollars were to be paid at once; twenty-five dollars on January 14th, 1889; twenty five dollars on January 21st, 1889; and the remaining twenty-five dollars at such time when defendant shall be satisfied with plaintiff's performance. The second and third payments, also, were only to be made provided defendant was satisfied with the manner in which plaintiff had performed the service to be rendered by him. The first and second payments were made and suit was brought to recover the third and fourth installments. On the trial plaintiff ' admitted that the instructions continued for ten evenings only and were thereupon discontinued because of his confinement at Mount Sinai Hospital and that he never thereafter offered to give further instructions. The trial justice was therefore clearly right in rendering judgment for defendant for the reason that plaintiff had failed to show performance on his part in accordance with the terms of the contract.

There is, however, a further barrier to the plaintiff’s recovery which goes to the very essence of the contract. Pursuant to its terms defendant was not bound to pay the installments claimed unless he was satisfied with the services rendered by plaintiff. This provision imposed upon plaintiff the necessity of showing, as a condition precedent to his right to recover, that the defendant was in fact satisfied. That he ought to have been so is not sufficient Similar contracts have always been held here, and elsewhere, as conferring upon the person in whose favor such a provision was made the right of refusing to be satisfied, whether such refusal be well founded or not. In Gray v. Central R. R. Co. of New Jersey, supreme court, general term, first department, reported in 11 Hun, 70, the contract was as follows:

11 December 17th, 1866.
“ The Central Railroad Company of Hew Jersey, offers to buy the steamboat John Adams, from J. & R. J. Gray, for the sum of $15,000 cash, provided upon trial they are satisfied with the soundness of her machinery, boilers, etc., and the said J. & R. J. Gray, agree to sell the above boat for the above price.
“ (Signed) John Taylor.
“ Johnston, President.
“ J. & R. J. Gray.”

And the court held that plaintiffs could not recover without showing that defendant was satisfied with the boat, citing with approval the language in McCarren v. McNulty, 7 Gray (Mass.), 189, “ It may be that the plaintiff was injudicious in agreeing to work for a compensation, the payment for which was made dependent upon a contingency so hazardous or doubtful as the approval of a party in interest, but of that he was the sole judge. Against the consequences of his own bargain the law can afford no relief.”

In Zaleski v. Clark, 26 Am., 446, the court say, “Courts of law must allow parties to make their own contracts and can enforce only such as they have actually made. Whether the contract is wise or unwise, reasonable or unreasonable, is ordinarily an immaterial inquiry. The simple inquiry is, what is the contract? and has- the plaintiff performed his part of it ? It this case the plaintiff undertook to make a bust which should be satisfactory to the defendant. The case shows that she was not satisfied. The plaintiff has not yet then fulfilled his contract. It is not enough to say that she ought to be satisfied with it and that her dissatisfaction is unreasonable. She, and not the court, is entitled to judge of that. The contract was not to make one that she ought to "be satisfied with, but one that she would be satisfied with.” To the same effect are Russell v. Allerton, 31 Hun, 307; Heron v. Davis, 3 Bosw., 336; Spring v. Ansonia Clock Co., 24 Hun, 175; Butler v. Tucker, 24 Wend., 447; Gibson v. Cranage, 33 Am., 351; Brown v. Foster, 18 id., 463.

The legal intendment of a clause limiting the liability of the party promising to pay to the case where he is satisfied with the performance of the party to whom payment is to be made, is that it was designed to confer some right which would not exist without it. If the party otherwise entitled to pay has failed to perform the contract on his part, the law impliedly relieves the other party from payment, and to hold that a clause limiting the liability of the party promising to pay only in the event that he is satisfied with the performance of the other is cumulative only of a right already existing by implication of law, and with reference to which the parties must be supposed to have contracted, would render such clause meaningless and unnecessary. “ The law, as we have already had occasion to say in reference to various topics, frequently supplies by its implications the want of express agreements between the parties. But it never overcomes, by its implications, the express provisions of parties. If these are illegal the law avoids them; if they are legal it yields to them, and does! not put in their stead what it would have put by implication if the parties had been silent.” Parsons on Contracts, vol. 11, p. 15; Vanderkarr v. Vanderkarr, 11 Johns., 122 ; Burr v. Stenton, 43 N. Y., 464; Mutual Ins. Co. v. Home, 2 id., 241; Addison on Con., Tpl. 1, § 30.

The person undertaking to pay upon the condition that he is satisfied with the performance of the party to whom payment is to be made must be held to be the sole judge as to whether he is satisfied or not, and from his refusal to be satisfied, however arbitrary or capricious such refusal may be, there can be no redress. It is, therefore, entirely optional with him to discontinue the contract at any time before its final performance, and if he sees fit to do so the other party is without remedy. In Tyler v. Ames, 6 Lans., 280, it was held that a contract to employ an. agent for a year, “ if he could fill the place satisfactorily,” meant to the satisfaction of the employer, and that the latter could arbitrarily terminate the contract at any time without assinging any reason therefor; that the word “satisfactorily” referred to the mental condition of the employer and not to that of the court or jury, and that the employer was not obliged to furnish proof of" facts and circumstances which would justify his refusal to be satisfied with the manner in which the employee had filled the office. See, also, Grant v. Burch, 36 Hun, 376.

In the present case, the evidence not only fails to show the slightest circumstance upon which the defendant’s satisfaction with the services of the plaintiff could be predicated, but it abundantly shows that the defendant had expressed his dissatisfaction therewith. And as the services upon the performance of which to the satisfaction of the defendant the plaintiff’s right to the moneys claimed depends had never been performed, the plaintiff from the very condition of things must fail in the proof required to entitle him to recover. If such services had been performed, the defendant could still assert his refusal to be satisfied, and thus defeat plaintiff’s recovery. Whether, therefore, the defendant had arbitrarily refused to receive the lessons remaining to be given, or the plaintiff’s contention that all the instructions contemplated by the contract had been actually given by lessons of longer duration than those specified in the contract be accepted as correct, in neither case could plaintiff have maintained this action.

The judgment appealed from should be affirmed, with costs.

Bookstaver, J., concurs.  