
    Duplex Safety Boiler Co. v. Garden.
    
    
      (Court of Appeals,
    
    
      Filed February 9, 1886.)
    
    Contract—Providing nor payment where parties “ are satisfied ”— Who to determine the question—When right of action accrues.
    Where plaintiff repaired and set up defendants’ boilers, under a contract that he was to be paid when defendants “ were satisfied that the boilers so changed were a success.” Held, that, as the work specified was completed, and defendants continued to use it without objection or complaint, the time for payment had come, and plaintiff had a right of action for the contract price if payment was refused. It is not for the defendants alone to determine the question as to when the boilers were satisfactory.
    
      John A. Deady, for appellants.
    
      JJ. C. Place, for respondent.
    
      
       Affirming 32 Hun, 68, mem.
      
    
   Danforth, J.

The plaintiff sued to recover $700, the agreed price, as it alleged, for materials furnished and work done for the defendants, at their request, upon certain boilers belonging to them. The defense set up was that the work was done under a written contract for the alteration, of the boilers, and to be paid for only when the defendants “were satisfied that the boilers, as changed, were a success.” Upon the trial it appeared that the agreement between the parties was contained in letters, by the first of which the defendants said to plaintiff:

“You may alter our boilers, changing all the old sections for your new pattern, changing our fire front, raising both boilers enough to give ample fire space.. you doing all disconnecting and connecting, also all necessary mason work, and turning boilers over to us ready to steam up. Work to be done by 10th of May next. For above changes we are to pay you $700 as soon as we are satisfied that the boilers, as changed, are a success, and will not leak under a pressure of 100 pounds of steam.”

The plaintiff answered, “ accepting the proposition,” and as the evidence tended to show, and as the jury has found, completed the required work in all particulars by the 10th of May, 1881, at which -time the defendants began and thereafter continued the use of the boilers.

The contention on the part of the appellant is that the plaintiff was entitled to no compensation unless the defendants “were satisfied that the boilers, as repaired, were a success, and that this question was for the defendants alone to determine,” thus making their obligation depend upon the mental condition of the defendants, which they alone could disclose. Performance must, of course, accord with 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. On the contrary, not only does the law presume that for services rendered remuneration shall be paid, but here the parties have so agreed. The amount and manner of compensation are fixed; time of payment is alone uncertain. The boilers were changed. Were they, as changed, satisfactory to the defendants ? In Folliard v. Wallace (2 Johns.. 395), W covenanted that in case the title to a lot of land conveyed to nim by F. should prove good and sufficient m law against all other claims, he would pay to F. $150, three months after he should be “ well satisfied ” that the title was undisputed. Upon suit brought the defendant set up that he was “not satisfied,” and the plea was held bad, the court saying: “A simple allegation of dissatisfaction, without some good reason assigned for it, might be a mere pretext, and cannot be regarded. ” This decision was followed in City of Brooklyn v. Brooklyn City R. R. (47 N. Y., 475), and Miesell v. Insurance Co. (76 N. Y., 115).

In the case before us the work required to be done was specified, and was completed. The defendant made it available, and continued to use the boilers without objection or complaint. If there was full performance on the plaintiff’s part, nothing more could be required, and the time for payment had arrived; for, according to the doctrine of the above cases, “that which the law will say a contracting party ought in reason to be satisfied with, that the law will say he is satisfied with.”

Another rule has prevailed where the object of a contract was to gratify taste, serve personal convenience, or satisfy individual preference. In either of these cases the person for whom the article is made or the work done may properly determine for himself—if the other party so agree— whether it shall be accepted. Such instances are cited by the appellant. One who makes a suit of clothes (Brown v. Foster, 113 Mass., 136), or undertakes to fill a particular place as agent (Tyler v. Ames, 6 Lans., 280), mould a bust (Zaleski v. Clark, 44 Conn., 218), or paint a portrait (Gibson v. Cranage, 39 Mich., 49 ; Hoffman v. Gallaher, 6 Daly, 42), may not unreasonably be expected to be bound by the opinion of his employer, honestly entertained. A different case is before us, and in regard to it no error has been shown.

The judgment appealed from should be affirmed.

All concur.  