Hawkins v. Graham

21 N.E. 312, 149 Mass. 284, 1889 Mass. LEXIS 169

Opinion

Holmes, J.

The only question in this case is whether the written agreement between the parties left the right of the plaintiff to recover the price of the work and materials furnished by him dependent upon the actual satisfaction of the defendant. Such agreements usually are construed, not as making the defendant’s declaration of dissatisfaction conclusive, in which case it would be difficult to say that they amounted to contracts, (Hunt v. Livermore, 5 Pick. 395, 397,) but as requiring an honest expression. In view of modern modes of business, it is not surprising that in some cases eager sellers or selling agents should be found taking that degree of risk with unwilling purchasers, especially where taste is involved. Brown v. Foster, 113 Mass. 136. Gibson v. Cranage, 39 Mich. 49. Wood Reaping & Mowing Machine Co. v. Smith, 50 Mich. 565. Zaleski v. Clark, 44 Conn. 218. McClure Bros. v. Briggs, 58 Vt. 82. Exhaust Ventilator Co. v. Chicago, Milwaukee, & St. Paul Railway, 66 Wis. 218. Seeley v. Welles, 120 Penn. St. 69. Singerly v. Thayer, 108 Penn. St. 291. Andrews v. Belfield, 2 C. B. (N. S.) 779.

Still, when the consideration furnished is of such a nature that its value will be lost to the plaintiff, either wholly or in great part, unless paid for, a just hesitation must be felt, and clear language required, before deciding that payment is left to the will, or even to the idiosyncrasies, of the interested party. In doubtful cases, courts have been inclined to construe agreements of this class as agreements to do the thing in such a way as reasonably ought to satisfy the defendant. Sloan v. Hayden, 110 Mass. 141, 143. Braunstein v. Accidental Death Ins. Co. 1 B. & S. 782, 799. Dallman v. King, 4 Bing. N. C. 105.

By the written proposition which was accepted by the defendant, the plaintiff agrees, “ in consideration of the sum of fifteen hundred and seventy-five dollars, to be paid me upon the satisfactory completion of the following system of heating ... in your new mills, ... to furnish and set up, ... in complete and first-class working order,” certain things. Then follow conditions, tests, and other undertakings. Then “ it is further declared . . . that in the event of my not being able to properly heat every portion of the buildings .... in accordance with the requirements as above set forth,” upon ten days’ notice “that the buildings are not being properly and sufficiently heated, and I cannot so heat it in ten days thereafter,” the plaintiff will remove the machines at his own expense. “In this event, no charges of any kind will be made by me on account of any of the aforesaid work; it being distinctly understood that the providing of the entire system is to be done at my own risk absolutely. In the event of the system proving satisfactory, and conforming with all the requirements as above provided for, the sum of fifteen hundred and seventy-five dollars as above provided for to be paid me, after such acknowledgment has been made by the owner or the work demonstrated.”

The last words “or the work demonstrated,” offer an alternative to the owner’s acknowledgment. They imply, that, if the work is demonstrated, it is satisfactory within the meaning of the contract, although the owner has not acknowledged it. The previous words, “ and conforming with all the requirements,” tend the same way. The ten days’ notice contemplated is not a notice that the owner is dissatisfied, but that the buildings “ are not being properly and sufficiently heated,” and the right to give it is conditioned upon the plaintiff’s “not being able to properly heat every portion of the buildings,” etc. Taking these phrases with the test prescribed, that the system is “ to readily as well as easily heat or raise the temperature at any point . . . to the temperature of seventy degrees (70°) Fahr. in the coldest weather that may be experienced,” etc., we are of opinion that the satisfactoriness of the system and the risk taken by the plaintiff were to be determined ■ by the mind of a reasonable man, and by the external measures set forth in the contract, not by the private taste or liking of the defendant.

Exceptions overruled.