
    Gerard Barry, Respondent, v. William J. Rainey, Appellant.
    Appeal by the defendant from á judgment of the Municipal Court, sixth district, rendered in favor of the plaintiff.
    Howard A. Taylor, for appellant.
    Philip Carpenter^ for respondent.
   Freedman, P. J.

The plaintiff firings this action to recover the sum of $500, the agreed price for painting a portrait, of the defendant.

The plaintiff, at the time the work was done, had a studio in the city ’of New York, and the defendant resided in the city of Cleveland, Ohio!

The plaintiff alleges and attempts to prove, that the- terms of the contract between the parties were, that, if the picture when com'pleted was satisfactory to him (plaintiff), the defendant was bound • to accept and pay'the agreed price therefor. The testimony is undisputed, that at a time when the defendant and his family were in the city of New York, the plaintiff visited and repeatedly asked the defendant to have his picture painted by plaintiff, and said that he (plaintiff) had no work in Cleveland, and wanted one picture in Cleveland,” evidently by way of aiding his business. The defendant claims that by the terms of the contract, under which the portrait was painted, it was agreed that unless the picture was satisfactory to him, he should not he compelled to pay for it, and that it was. not satisfactory to himself or the members of his family.

In this contention he is supported by the testimony of his wife, who was present at many of the conversations. between the parties upon that subject.

The defendant also testifies that the picture was' framed and sent to Cleveland to defendant’s home, at the request' of the plaintiff, and upon his assurance that the framing would-cure the defects existing in the picture, but which it failed to do, and the picture was thereupon reshipped to the plaintiff, and the defendant refused to accept or pay for it. The plaintiff assumed the burden of proof in the case, and was bound to establish, by a fair preponderance of evidence, that the contract was as he claimed it to, be. . This he failed to do. From his own statement as to what he said to defendant at the times he solicited the work, it is not clear that he expressly said:- That the painting should be taken-by defendant, if it was satisfactory to plaintiff.” He repeatedly says: “I meant to me, when I said it should be satisfactory.” Contracts, like the one at bar, when sought to be enforced must be determined-by the words actually used. 'Their méáning cannot be derived „ from what existed solely in the mind of one of the parties. Moreover, the claim of the plaintiff as to what the contract ’was, is improbable on its face. The right of refusal to accept the picture does not appear to have been exercised, by the defendant, in an unreasonable, capricious or arbitrary manner. The plaintiff having failed to maintain the burden of proof required, the judgment must be reversed. ■ ....

MacLean. and Leventritt, JJ., concur.

Judgment reversed, hew trial ordered, with costs to appellant to abide event. .  