Bayley v. Anderson ( 1888 )

Colb, C. J.

In the proposal of the plaintiff made to Trumbull, he agreed to furnish the iron-work for the buildings named, according to the “ plans and specifications ” of the architect. The specifications referred to were a part of the original contract between Trumbull and the regents of the university, and required that all the materials used in the construction of the building should be of the best quality of their respective kinds, subject to the approval of the architect and superintendent. The contractor was to be paid for his work as it progressed, at a specified rate, apon estimates made by the superintendent, but the contract provided that no material was to be estimated or be paid for until used in the permanent construction of the building. It was one of the duties of the superintendent to decide upon the fitness of all materials used; and the work done was to be to his entire satisfaction, without reference to any other person. We think these plans and specifications of the original contract became a part of the contract between the plaintiff and Trumbull, and that the parties contracted with reference to them. These facts are material as bearing upon t'he question discussed as to when the title passed of the iron beams in controversy. The learned counsel for the defendants claims that the title to them passed as soon as they were delivered on the university grounds and Trumbull had an opportunity to inspect them; consequently, that they were Trumbull’s property when the supplemental contract for completing the building was entered into by the defendants. On the other hand, it is insisted that the sale of the beams, under the contract, was subject to the approval of the superintendent, and they did not become the contractor’s property until such approval was had; that, in fact, the beams were not actually wrought into the building and accepted by the superintendent, either expressly or impliedly, before the defendants entered into the contract of January 29, 1886. Therefore, it is said, the beams were not the property of Trumbull, and he could not have transferred them to the defendants even if he had attempted to do so. We are inclined to adopt this view of the transaction.

There can be no doubt but parties may make a valid sale of an article dependent upon the approval of another person; in such case there is no absolute sale until the approval is given. This is familiar law. Here the contracts •clearly provide that the iron beams furnished by the plaintiff were to be subject to tbe approval of the superintendent, and the evidence shows that the superintendent did not accept or approve of them until they were wrought into the building. The superintendent did not even examine them while they were lying on the ground, and did nothing, in fact, in respect to them, which could be deemed an approval. The sale was a .conditional one in the strict sense of the term; the vendee was not bpund to pay for the beams unless the superintendent was satisfied with them. See Exhaust Ventilator Co. v. C., M. & St. Paul R. Co. 66 Wis. 218. The superintendent had the right to reject the beams even after they were placed in the building, if they did not answer the contract. But when the beams were permanently wrought into the building, and the superintendent made estimates for them, this should be deemed an acceptance and approval. Until that was done, the property was in the plaintiff and at his risk. The defendants entered into a contract to complete the building after the regents declared the Trumbull contract forfeited by reason- of his failure to perform. The nineteen beams, for the value of which a recovery was had, were then upon the ground. They w’ere used in the building by the defendants, were accepted by the superintendent, and the defendants were paid for them. They seek -to avoid liability to the plaintiff on the ground that by the sale the property passed to Trumbull, and that he alone is responsible for it. The court below, in effect, decided that, as these beams were used by the defendants in and about the construction and completion of the building, they were liable to the plaintiff for their value. We think that view is correct, and the judgment is therefore affirmed.

By the Court.— Judgment affirmed.