Singerly v. Thayer , 108 Pa. 291 ( 1885 )

Chief Justice Mercur

delivered the opinion of the court; October 5th, 1885.

This contention arises on a contract contained in the following written proposal, to wit:

15th and Market,- Phila. Pa., 8,16,1881.

Wm. M. Singerly, Esq.:

I propose to put my patent hydraulic hoist in your new building on Chestnut street, (including a duplex pump worth $800), according to verbal specifications given by your architect, for $2,300, warranted satisfactory in every respect.

Yours, Eli Thayer.

Plaintiff in error accepted this proposition. The elevator was substantially finished. It proved to be unsatisfactory. He therefore declined to accept it, and gave notice that he desired it to be removed. Tins Thayer refused to do. Thereupon Singerly took it down and holds it subject .to the order of Thayer. The latter brought this suit claiming the contract price.

The controlling question is what meaning and'effect are to be given to tbe words “ -warranted satisfactory in every respect ?”

Satisfactory to whom? Certainly not to tbe maker only. Was it to be satisfactory to the person for whom it was to be made and by whom it was to be used ? The learned judge thought this was not a necessary requirement; but if it was built in a workmanlike manner and performed its intended purpose in a manner which ought to be satisfactory to the plaintiff in error, that was sufficient. In other words it may have been wholly unsatisfactory to him, yet if the jury thought he ought to have been satisfied, he was bound to accept it. In effect that is, it need not have operated to his satisfaction in any respect: but to the satisfaction of the jury which might be called to pass on the rights of the parties.

The proposition was made to induce him to purchase' a kind of elevator not in general use. The fair inference is that he desired to procure one that would be satisfactory to himself. The manifest import and meaning of the language used is that it should he satisfactory to him. This then was the agreement. To him alone was the proposition made. It would not have been any clearer had it read warranted satisfactory to you in every respect. He therefore was the person to decide and to declare whether it was satisfactory. He did not agree to accept what might be satisfactory to others but what was satisfactory to himself. This was a fact which the contract gave him the right to decide. He was the person negotiating for its purchase. He was the person who was to test it, and to use it. No other persons could intelligently determine whether in every respect he was satisfied therewith.

McCarren v. McNulty and others, 7 Gray, 139, was on an agreement to make a book-case “ in a good, strong and workmanlike manner, to the satisfaction of the president of the society” for which it was to be made. It was held not to be sufficient to prove that it was constructed according to the terms of the agreement without also proving it was satisfactory to or accepted by the defendant.

When the agreement is to make and furnish an article to the satisfaction of the person for whom it is to be made, numerous authorities declare it is not a compliance with the contract to prove he ought to have been satisfied. It was so held in Gray v. The R. R., 11 Hun, 70, where the contract was for the purchase of a steamboat: In Brown v. Foster, 113 Mass., 136, when the agreement was to make a suit of clothes: In Zaleski v. Clark, 44 Conn., 218, on a contract for a plaster bust of the deceased husband of the defendant: In Gibbson v. Cranage, 39 Mich., 49 where a portrait was to be satisfactory to the defendant, and in Hoffman v. Gallaher, 6 Daly, 42, where a portrait of defendant was to be satisfactory to Ms friends. So where a person got a set of teeth from a dentist under an agreement that they were to be satisfactory, it was held, in Hartman v. Blackburn, 7 Pittsburgh Leg. Jour., 140, that he was made the exclusive judge of their value.

To justify a refusal to accept the elevator on the ground that it is not satisfactory, the objection should be made in good faith. It must not be merely capricious. It is declared in 1 Parsons on Contracts, 542, if A. agrees to make something for B. to meet the approval of B. or with any similar language,' B. may reject it for any objection which is made in good faith and is not merely capricious. Andrews v. Belfield, 2 C. B., N. S., 779, is cited to support this view. That case arose on a written agreement to build a carriage in a manner which should meet the approval of the person for whom it was to be made not only on the score of workmanship, but also that of convenience and taste. It was held that his rejection made M good faith was conclusive.

This “ hoist ” is unlike those in most general use. They are usually suspended from a wire or rope cable which may be operated either by water or by steam. This is supported by a single upright iron column made in sections wlrich run into each other like the sections of a telescope. It stands under the center of the car. When the sections are folded closely together the car is at its lowest position. On the water being forced into the sections by a steam pump, the pressure of the water within the column causes the sections to draw out, thereby forcing .the car upward and so sustainmg it. When a valve is opened the water escapes. Then the weight of the car and the weight of the upper sections of the column cause the sections to run into each other, and the car descends.

While the evidence is conflicting as to the efficient working of the elevator, and the weight thereof induced the jury to find the elevator ought to have been satisfactory; yet we tMnk there is evidence to show the plaintiff in error acted in good faith and not in mere caprice in refusing to accept it. We will refer to some. John Doris testified that he ra»n tMs elevator about a month; that he would take it Mom the first to the sixth floor; it would almost drop from the sixth to the tMrd floor, and then it would almost stop, and then go slowly down; it acted the same whether the steam pressure was great or small; it would start and jump in getting up to where we wanted to go; almost every trip it would drop suddenly from the sixth to the third floor; if we put on a load it would jump all the way up. John Norris who rode on it four or five times says “ it was jerky and every little period it gave a little jerk, causing your stomach to rise.” Albert Merritt testified lie had ridden on them; but they were so unsatisfactory and uncertain that’ be preferred to walk up stairs; they would stick both going up and coining down. He had one of the same kind which he says was not entirely completed although two or three months were occupied in trying to put it in order; he “ considers them the biggest frauds he ever saw in the elevator line.” S. Lloyd Wiegand a mechanical engineer of twenty-eight years experience testifies that “a building of moderate height can use -them very well; it don’t work well in a tall building.” Hale the architect of the building rode on it and saw it often. He says it did not run smoothly; at the end of every section it would give a jerk and a click. He examined this and others of the same kind to report to plaintiff in error, and “ came to the conclusion that it would never do as a passenger elevator on which ladies were to ride.” He informed the agent of the contractor that the elevator was a failure. Plaintiff in error also testified to its jerking and irregular motion being such as to scare him, and Ms fear of an accident; of notice to the agent that it was unsatisfactory; and of Ms offer to give $500 if he would take it out.

It may have been very unwise in the maker of tins elevator to agree to expend labor and furnish materials, and rely for payment on the uncertain approval of one so largely interested in determining whether it was satisfactory to himself. Having however entered into a contract whereby he did run this risk, his legal rights are to be determined thereby : McCarren v. McNulty et al. supra: In Nelson v. Von Bonnhorst, 5 Casey, 352, one gave a written instrument under seal admittmg an indebtedness to another in' a specific sum which he agreed “to pay whenever in my opinion, my circumstances will enable me to do so.” It was held that the instrument imposed no legal obligation which could be enforced by action, as the maker was the sole judge of his ability. In that case there was an unquestioned indebtedness to be discharged by the payment of money. Every other person might swear the circumstances of the debtor made him abundantly able to pay, yet that did not determine his legal liability.

It is claimed that the elevator was rejected before it was finished, and if time had been given, it would have been made satisfactory. If in fact it was rejected before it was substan-f tially completed, so that the plaintiff in error could not reason-j ably determine whether it was or would be satisfactory tcj Mm in all respects, then his rejection was prematurely made and under the pleadings would not constitute a bar to the action. If however it was sufficiently completed so he could understand how it would operate he was not bound to wait an unreasonable time for the entire completion of some minor things.

In so far as the sjiecifications of error are in conflict with this opinion they are dismissed.

Judgment reversed and a venire facias de novo awarded.