209 Wis. 547 | Wis. | 1932
Plaintiff sued on express contract to recover the agreed price for dental services, including a removable' bridge and upper and lower porcelain dentures, to be made for Kathryn Bergelin, the wife of the codefendant, Henry Bergelin. There was no dispute as to the agreed price. However, in answer to the complaint, defendants alleged
If, as defendants alleged, and as their proof tended to establish, due performance on plaintiff’s part, under the terms of the express contract, required him to construct dentures which fitted to the satisfaction of Kathryn Bergelin, in order to entitle him to payment of the agreed price, then defendants were not obliged to accept the dentures or pay therefor if her dissatisfaction was real and in good faith, and not merely capricious or mercenary, or the result of a dishonest design to be dissatisfied in any event. If it was expressly agreed that the dentures had to be satisfactory to Kathryn Bergelin to entitle plaintiff to payment of the agreed
. “It is admitted by the plaintiffs that the contract was that the die should operate satisfactorily. . . . The respondents seem to claim that, if they could prove by the preponderance of the evidence that the machine in fact did good work, the contract has been fulfilled. This is not the law in this state. When such a contract is made, the article must be, in fact, satisfactory to the purchaser, or he is not bound to take it. His dissatisfaction must not be capricious or mercenary, nor result from a dishonest design to be dissatisfied in any event. It must be real and in good faith, but, if these requirements be satisfied, he is not bound to take the article.”
To the same effect see Manning v. School District, 124 Wis. 84, 104, 102 N. W. 356; Lieberman v. Weil, 141 Wis. 635, 638, 124 N. W. 262; Keachie v. Starkweather D. Dist. 168 Wis. 298, 304, 170 N. W. 236; also Aymar v. Bloomingdale, 157 N. Y. Supp. 837, in which the rule was applied to a contract for dental work, which plaintiff had paid for under a promise by the defendants to return the money should he be “dissatisfied.”
Under such contracts it is not sufficient that there has been performance in a good and workmanlike manner. It is true that is all that was necessary, in so far as performance was concerned, in Holsapple v. Scofield, 176 Wis. 649, 187 N. W. 682, which was also an action to recover for dental services. However, in that action there was no such express contract as .defendants contend existed in the case at bar. That action was brought to recover, on a contract implied in fact, the reasonable value of dental services performed without any express agreement that there was to be no obligation to pay unless the work when completed was satisfactory to the patient. Consequently, it was held in that case that lay evidence that the result was not satisfactory to the patient
By the Court. — Judgment reversed,- and cause remanded for a new trial.