Adams Radiator & Boiler Works, Ltd. v. Schnader , 155 Pa. 394 ( 1893 )

Opinion by

Mb. Justice Dean,

Davis C. Schuader, defendant’s testator, the owner of a dwelling house then being built, on the 24th of August, 1889, made á written contract with plaintiffs that they should furnish this house with a steam heater. Among other stipulations is this one:

“We (plaintiffs) guarantee this apparatus for heating by steam to be constructed in a good, thorough, and workmanlike manner, to give entire satisfaction in its operation and to work entirely noiseless. Should it prove unsatisfactory after a thorough and reasonable trial, we will remove it at our expense, refund the monies paid to us on account of it, and will place the building in as good a condition as it was when we received it for the purpose of erecting our steam-heating apparatus. We will furnish said steam-heating apparatus complete in all its details for the sum of four hundred and eighty-two dollars ($482.00); one half to be paid on completion of the work, and the remainder in sixty days thereafter.”

The specifications of kind and size of materials to be used in the constructions are elaborate. We do not deem them, so far as this issue is concerned, very material, for the case turns on the construction to be given that stipulation in the agreement just quoted.

Mr. Schuader moved into his house on Tuesday of the last week in March, 1890, and died on the following Saturday. By his last will, duly proven, he devised the dwelling house to his son, Milton H. Schnader, his executor and this defendant, subject to a life estate in his widow. Before his death, and before the heater, by use for a reasonable time, had been tested, he paid to plaintiffs about one half the price.

Milton H. Schnader, son, executor and devisee, was in the house with his father for the four days of his last illness, and continued to live there with his mother. He testified that the heater was wholly unsatisfactory to him from the day it was first started; failed to heat the rooms. He notified plaintiffs of this when they demanded payment of the last installment of the price, and asked them to defer collection until the following December, when the weather would be colder and a better test could be made. This they declined to do, and proposed that James N. Scheible, a plumber, should make an examination of the heater; this was concurred in by Schnader, and the last of June or first of July Scheible fired it up, and it worked satisfactorily to him, Scheible, on that day, at that season of the year. But Schuader was not satisfied, and on the 6th of September, in response to plaintiffs’ written demand of Augirst 25th, for immediate payment, requested them to remove the heater from his premises. The plaintiffs then brought suit for $274.03, the unpaid balance of their contract price.

At the trial, plaintiffs averred complete performance of their contract according to its terms; defendant denied this. There was considerable evidence adduced on both sides as to the quality and capability of the heater, which was submitted to the jury by the learned court below, on the theory or construction of the agreement, that if plaintiffs performed their contract according to the specifications, to their own satisfaction and that of the jury, then they should have a verdict. This instruction the appellant’s seven assignments of error complain of.

What is a reasonable interpretation of the contract of plaintiffs when they say, “We guarantee this apparatus to give entire satisfaction in its operation, and should it prove unsatisfactory after a thorough and reasonable trial we will remove it at our expense.” It must be kept in mind, that this was not a piece of machinery designed to accomplish some single or particular purpose in which power and durability alone constitute desirability or satisfactoriness. A sawmill may be warranted as of a capacity to cut a certain quantity of lumber per day; a locomotive may be warranted to draw a certain number of tons up a certain grade, or around a certain curve; and if there be a guaranty that they shall give satisfaction, it can reasonably be presumed that the specified power was' all that was within the mind of the parties when they contracted. But when the subject of the contract is household furniture, as in McCarren v. McNulty, 7 Gray, 139; or for a suit of clothes, as in Brown v. Foster, 118 Mass. 136; or for a work of art, as in Hoffman v. Gallaher, 6 Daly, 42, and Zaleski v. Clark, 44 Conn. 218, the question is not whether the thing contracted for had a certain strength or a particular dimension as specified in the contract, but there come in to make up satisfaction or dissatisfaction those qualities which please, or those defects which are nothing more than annoying. A dwelling house heater is in use every hour of the day and night; is absolutely indispensable to the health and comfort of the householder and his family; if all the iron and brickwork be made as specified; the valves, guagecocks, radiators, boilers and all other parts, measure as set out in the contract; and if, even on one day in the middle of summer on being fired up and operated by an expert plumber, a degree of heat is attained which, in his opinion, comes up to the point fixed in the contract, these facts would not of themselves determine that it was satisfactory to the man who was to use it in zero weather. If in its ordinary every-day use in heating his house, instead of satisfying him, it was, as he testifies, a constant vexation, we think he was not bound to keep and pay for it.

The reasonable interpretation of the contract is, that Schnader was to be satisfied with the heater; not the plaintiffs; not the plumber, nor other witnesses; not the jury. As is said in Zaleski v. Clark: “ It is not enough to say she (the defendant) ought to be satisfied with it, and that her dissatisfaction is unreasonable. She, not the court, is entitled to judge of that. The contract was not to make one she oúght to be satisfied with, but one she would be satisfied with.”

The rule laid down by this court in Singerly v. Thayer, 108 Pa. 291, is to the same effect, and is clearly applicable to this contract and this evidence. The court says: “ He (the defendant) 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 the fact which the contract gave him the right to decide. He was the person who was to test and use it. No other persons could intelligently determine whether in. every respect he was satisfied therewith.”

The appellees’ counsel argue that there is a distinction between this contract and the one in Singerly v. Thayer. In the contract before us, plaintiffs agree to remove the heater “ should it prove unsatisfactory after a thorough and reasonable trial,” while there are no such words in the Singerly and Thayer contract. But the plaintiffs on the trial alleged, and offered evidence to prove, that at their suggestion and by consent of defendant a test trial was given this heater in June or July. Mr. Adams, for the plaintiff, testified that the trial demonstrated he had complied with his contract; that is his opinion. He admits that a trial at that time of the year would be a theoretical, not a practical one.

The defendant concedes that on that trial it worked better than it usually did, but he was not convinced it would work satisfactorily to him in cold weather. The fair presumption is, that the “ thorough and reasonable trial ” contemplated by the parties, was its use by the householder under tbe supervision and attendance of the ordinary household servants. It was not expected the purchaser would daily employ skilled plumbers or engineers to operate it. In this ordinary and expected use of it from March until June it was unsatisfactory to Schnader ;• after the trial test made by the expert Scheible, in presence of Adams and Schnader in summer, it still was not satisfactory; was so unsatisfactory that Schnader offered to forfeit all he had paid if plaintiffs would take the heater out.

Of course defendant’s dissatisfaction must be genuine, as distinguished from mere caprice or dishonesty; he could not have ordered the heater taken out without a trial by the ordinary methods and service of the householder; nor, for the purpose of evading payment of the balance of the price, could a dishonest declaration of dissatisfaction have been an effectual defence.. But there is no evidence of want of good faith in his conduct; he has a right to defend on the ground that the heater does not work satisfactorily to him, after what he considered a thorough and reasonable trial by the ordinary use of it for more than two months, and especially after the test trial proposed by plaintiffs.

In substance, the court below submitted it as a question of fact to the jury to find from the evidence whether he ought to have been satisfied; this was an erroneous interpretation of the contract. The proper interpretation is : (1) Was there a thorough and reasonable trial of the heater by the ordinary daily use of it? (2) Was the defendant then dissatisfied with it ? If he was dissatisfied after such trial, the plaintiff cannot recover. Neither the plaintiff, jury, nor witnesses ought to be permitted to make a cozitract for him; his contract was, that he was to be satisfied, and plaintiffs must perform their contract in this particular the same as in the item of putting in boilers.

Plaintiff’s counsel further argue that the judgment should be affirmed, because this contract was personal alone to D. C. Schnader, defendant’s father, who died four days after tbe heater was put in the house; as he does not survive to indicate dissatisfaction, the defendant has no authority to do so. The plaintiffs raised no such question in the court below, so far as can be learned from the charge or the points presented; but as the case goes back for retrial it is best we should here briefly pass upon it.

It would rather lack equality fco hold that the contract liability for the price passed to the executor and devisee, but the right to insist on performance died with the testator; neither reason nor law imposes upon us such a decision. If D. C. Schnader had lived to make such trial of the heater as was intended by the contract, and had expressed no dissatisfaction with it, there would be a conclusive presumption of plaintiffs’ complete performance; but as he died almost immediately after it was put in, his executor and devisee has the right to set up the same defence as the testator might have done had he lived. It was not a contract for a suit of clothes, or for a set of artificial teeth, which could be satisfactory to but one person, but for a heater, which was to be satisfactory to the occupant of the house whore it was to be put up; death and the last will have made this defendant the occupant, and lie has the right to insist that the heater shall work satisfactorily to him, as he has succeeded not only to the property, but to the personal use of it.

The defendant’s first assignment of error to the refusal of the court to instruct as requested in first point: “ That under the law the contract of August 24, 1889, is a guaranty or warranty that the apparatus would work to the satisfaction of Davis C. Schnader, deceased, and that, if the evidence is believed that as executor he fairly and reasonably tried and tested the apparatus and was dissatisfied with it, and so notified plaintiffs, there can be no recovery,” is sustained. This in effect disposes of all the other assignments.

The judgment is reversed, and a venire facias de novo awarded.