Bruner v. Hegyi — 42 Cal. App. 97

Majority

p. 97

[Civ. No. 2143.

Second Appellate District, Division Two.

July 5, 1919.]

S. A. BRUNER, etc., Respondent, v. GABOR HEGYI, Appellant.

Headnote

[1] Contracts — Performance to Satisfaction of Promisee — Refusal to Accept—Good Faith.—Where a contract requires certain work to be done to the satisfaction of the person contracting for it, and the work is of a kind that involves fancy, taste, sensibility or judgment, and no benefit passes under the contract unless the work be accepted, the promisee’s refusal to pay for the work cannot be called in question, provided only that his refusal is in

p. 98

good faith and not from mere caprice. In eases of that character, the question is not whether the one complaining of the work ought to be satisfied, but solely as to the good faith of the dissatisfaction alleged.

[2] Id.—Performance of Work Going into Building-Retention of Benefits—Measure of Satisfaction.—Where the work contracted for goes into a building, the fruits of the labor of the contractor being retained by the owner, a stipulation in the contract to perform to the satisfaction of the owner calls for only such performance as is satisfactory to a reasonable person. It is sufficient if the contractor completes his work in accordance with the contract in such a manner that the owner, as a reasonable man, ought to be satisfied with it.

[3] Id.—Modification by Parol.—The terms of a written agreement may not be varied or modified by proof of a prior oral agreement.

3. General rule that parol evidence is not admissible to vary, add to, or alter a written contract, notes, 6 L. R. A. 38 ; 17 L. R. A. 270 .

APPEAL from a judgment of the Superior Court of Los Angeles County. Lester T. Price, Judge Presiding. Affirmed.

The facts are stated in the opinion of the court.

Frederick A. Preston for Appellant.

Hollzer & Greenberg, Charles Greenberg, Owen C. Emery and Albert M. Norton for Respondent.

This is an appeal from a judgment in favor of plaintiff for $810, and interest, for work performed and materials supplied in setting in place the tile work for defendant’s residence.

The agreement, which was in writing, executed by defendant and plaintiff, provides that the “work must be satisfactory to the owner.”

The court found that the tile furnished by plaintiff was of the best quality, and that the work was done in a good workmanlike manner. It seems, however, that after the tile was set in place and through no defect in the workmanship or material, but probably because, as was intimated by one of the witnesses, the building contracted and expanded, the tile cracked or checked—became what is known to the trade as “crazed.” For this reason the work was

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not performed to defendant’s satisfaction. The court found, however, that it is the nature of all tile to craze; that the crazing of the tile on this job was not caused by any defects in the material or by any fault in workmanship ; and that, though the work was not performed to defendant’s satisfaction, it nevertheless was performed “reasonably satisfactorily,” and was “a satisfactory piece of work.”

Each of the court’s findings is supported by evidence amply sufficient for the purpose.

[1] There are eases that hold that where the contract requires the work to be done to the satisfaction of the person contracting for it, and the work is of a kind that involves fancy, taste, sensibility, or judgment, and no benefit passes under the contract unless the work be accepted, as where, for illustration, a portrait is to be painted, the promisee’s refusal to pay for the work cannot be called in question, provided only that his refusal is in good faith and not from mere caprice. In cases of that character, the question is not whether the one complaining of the work ought to be satisfied, but solely as to the good faith of the dissatisfaction alleged. [2] "Where, however, as in this case, the work contracted for goes into a building, the fruits of the labor of the contractor being retained by the owner, the rule is that a stipulation in the contract to perform to the satisfaction of the owner calls for only such performance as is satisfactory to a reasonable person. It is sufficient if the contractor completes his work in accordance with the contract in such a manner that the owner, as a reasonable man, ought to be satisfied with it. (Gladding etc. Co. v. Montgomery, 20 Cal. App. 276 , 279, [ 128 Pac. 790 ]; Bryan Elevator Co. v. Law, 31 Cal. App. 204 , [ 160 Pac. 170 ]; Erickson v. Ward, 266 Ill. 259 , [Ann. Cas. 1916B, 497, 107 N. E. 593 ]; Doll v. Noble, 116 N. Y. 230 , [ 15 Am. St. Rep. 398 , 5 L. R. A. 554 , 22 N. E. 406 ] ; Handy v. Bliss, 204 Mass. 513 , [ 134 Am. St. Rep. 673 , 90 N. E. 864 ].)

[3] The claim of a prior oral agreement that the tile should be according to sample furnished by plaintiff was clearly an attempt to vary and modify by parol the terms of a written contract. This, of course, is not permissible. (Gladding etc. Co. v. Montgomery, supra.) Moreover, the

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court found that the tile furnished by plaintiff actually was according to the sample furnished.

We find no error in the record, and think the judgment should be affirmed. It is so ordered.

Sloane, J., and Thomas, J., concurred.

Cases cited

Gladding, McBean & Co. v. Montgomery 20 Cal. App. 276 Cal. Dist. Ct. App. 1912-11-01 at 279 p. 99
Bryan Elevator Co. v. Law 31 Cal. App. 204 Cal. Dist. Ct. App. 1916-08-08 p. 99
Doll v. Noble 116 N. Y. 230 N.Y. 1889-10-08 p. 99