Howard v. Smedley , 140 Pa. 81 ( 1891 )

Per Curiam:

We think this case is ruled by Singerly v. Thayer, 108 Pa. 291. The contract for the elevator contained this clause: “ I further agree that if my horizontal cylinder direct hydraulic elevator does not answer as per above agreement, then I will take it out at my own expense.” The plaintiff further agreed that payment should be made “ when the elevator is in running order satisfactory to Mr. Moore or Mr. Smedley.” The evidence showed that it was not in satisfactory running order to Mr. Smedley, although various efforts were made by plaintiff at various times, covering several months, to put it in such order. The fact that such efforts were required to be made is evidence that' it did not work satisfactorily, and that the defendant’s objections were not founded upon “mere caprice.” The plaintiff’s contention, however, was that, if the defendant was not satisfied, he ought to have been; that it was connected with a fifteen-horse power boiler, instead of an eighty-horse power boiler; and that the faults complained of “ were due to a want of ordinary care and attention on the part of those having charge of the machine, which the nature of the said machine required for its proper operation.” But, for anything that appears, the defendant may have wanted an elevator that could be operated by a fifteen-horse power engine, and by boys or green hands in its management. It is not customary in hotels and places of business to employ engineers to manage an elevator ; on the contrary, they are usually so constructed that a boy can do so with slight instruction. When the plaintiff agreed that it was not to be paid for until it was in “ running order satisfactory to Mr. Smedley,” he submitted that question to the defendant’s judgment, and, as there is nothing to show caprice in its exercise, we think the plaintiff was bound by it.

Judgment affirmed.