Gray v. Alabama National Bank — 30 N.Y. St. Rep. 824

Majority

p. 824

Olin D. Gray, Pl’ff, v. The Alabama National Bank, Def’t.

(City Court of New York, Trial Term,

Filed April 21, 1890.)

Headnote

Contract—Work to be done to satisfaction of other party.

Defendant gave an order to plaintiff’s assignee for steel plate drafts provided it could “ have a satisfactory design ” for them, the work to be first class in every respect. It suggested alterations in the design furnished, which were made, but was not satisfied with the final design and refused to take the goods. Held, that the work being a matter of taste, defendant was entitled to reject it without assigning any reason for dissatisfaction, and that suggesting the alteration was not a waiver of the condition.

The action is by the plaintiff, as assignee of the August Gast Bank Note & Lithographing Company of St Louis, Mo., to recover $400 damages for breach of a written order, the material portion of which is as follows: “I desire you to make for this bank fifty M. steel plate drafts, no stubs, printed on the best white paper, numbered and addressed as we order same; price, including plates, $12.50 per M. The above order is given on the understanding that lam, to have a satisfactory design for the above, and that the work is to be first class, in every respect.” This writing was signed by Mr. Johnston, the president of the defendant. Acting upon this, the lithographic company prepared and sent on a design, to which the defendant suggested certain alterations, which were made, and a second design was sent on. Neither proved satisfactory, and Mr. Johnston finally wrote: “Unless I can get something that does please me, I don’t, want anything.” The lithographing company incurred expenses endeavoring to fill the order satisfactorily, and in good faith endeavored to comply with it. The main question presented for decision is the meaning and effect of the term “ satisfactory,” as used in the condition embraced in the order.

William B. Ellison, for pl’ff; jW. H. Brandin, for deft.

Lithography is an art, so is steel plate engraving, and whether the work produced is good, bad or indifferent, is one of artistic opinion, taste or fancy. Bank note engraving at the present time involves skill, artistic taste, scenic effect and arrangement. Some people are fastidious about their checks and drafts, and want them equal in appearance to - bank notes. Common printed checks or drafts procurable at the banks or stationers may suit the ordinary requirements of trade, but not the peculiar fancies of individuals who seek to satisfy their notions and gratify their exceptional

p. 825

taste. As a consequence, no two specially designed checks or drafts are exactly alike, a circumstance that proves that taste and fancy have much, if not all, to do with the selection finally made. Some checks are neat, not gaudy; others are loud and showy. They vary in size, appearance, style of print, lithography and engraving. The variety of vignette is innumerable. Stationers keep books in which may be found all sorts and kinds of patterns and designs, and even these are modified to suit the peculiar notion or fancy, original or otherwise, of the customer. From all this, it will be assumed that the order given by the defendant embraced a subject involving taste, fancy and judgment, respecting which minds might differ. The condition inserted in the order that it was given upon the understanding that the president •of the defendant should first have a satisfactory design, means a •design satisfactory to him, and that the order was not to become operative as a contract until this condition precedent was performed. Suggesting an alteration in the first design was not a waiver of the condition, as the manner of making the change was not mechanical, but involved the exercise of taste and fancy.

Whether it was wise or business-like to act on an order which left the approval of the design to the mental operation of the mind and judgment of the defendant’s president is not open for discussion. The time for that line of thought has passed. Such was the condition assented to, and the rights of the parties must be determined from the contract as it is. This fixes their obligations, and they cannot be altered or enlarged. There is no doubt of the general, proposition that where one party agrees to do a thing to the satisfaction of the other, and the excellence of the work is a matter of taste, such, for instance, as a portrait, bust, suit of clothes, dramatic play, or a particular piece of furniture, the employer may reject it without assigning any reason for his dissatisfaction. In such a case the law cannot relieve against the folly of the employee by inquiring whether the dissatisfaction of the employer was based upon reasonable grounds or not. It is even doubtful whether it can inquire into the good faith of the employer’s decision. Glenny v. Lacy, 16 N. Y. State Rep., 798 ; Campbell P. P. Co. v. Thorp, 36 Fed. R., 414 ; Seeley v. Welles, 13 Atl. R., 736 , and cases cited.

Parties must stand to their contract as they made it, and if one party agrees to furnish an article that is satisfactory to the other, he constitutes the latter the sole arbiter of his own satisfaction. If, however, the task to be performed does not involve matter of taste, fancy or judgment, but of common experience, such as an ordinary job of mechanical work or the quality of material, a different rule applies, and in such cases the law will say that what in reason ought to satisfy a contracting party does satisfy him. Duplex S. B. Co. v. Garden, 101 N. Y., 387 ; 1 N. Y. State Rep., 51; and see 47 id., 475 ; 76 id., 117.

The present case falls within the rule first stated.

For these reasons there must be judgment for the defendant.