131 Mich. 52 | Mich. | 1902
(after stating the facts). The jury, by their verdict, have settled the questions of fact submitted to them in favor of the plaintiff. These were:
1. Did the plaintiff proceed in the erection of the wall without the permission of the architect, defendant’s authorized agent ?
2. Did he protect the wall in the usual manner by the use of manure, and as directed by the architect ?
4. Was the trouble with the wall caused by extreme cold weather, which froze and billed the mortar ?
5. Was the mortar made as required by the contract?
6. Had plaintiff substantially performed the contract ?
Upon these questions there was a conflict of evidence.
Plaintiff was not an insurer of the success of the work. He agreed to perform it in accordance with certain plans and specifications. If he made the mortar as provided by the contract, and protected it as he agreed, and performed the work as he was directed or permitted to do by defendant’s proper authorities, he is not responsible for the condition of the wall caused by freezing. He did not guarantee that the-wall should stand the weather. That risk was assumed by the defendant. A similar question arose in Filbert v. City of Philadelphia, 181 Pa. St. 530 (37 Atl. 545); Harlow v. Borough of Homestead, 194 Pa. St. 57 (45 Atl. 87). These cases fully support the instructions of the court.
Counsel for defendant insist that the work was not done to the satisfaction of the board of public works; that that body was the final arbiter upon the question, and its judgment should be conclusive. Counsel, however, upon the argument, conceded that the defendant could not arbitrarily determine that the wall was not satisfactory, that plaintiff had not complied with the contract, and refuse payment. This concession leaves open the question for a court or a jury whether such determination is arbitrary, and this, as a matter of course, involves the question whether the plaintiff had substantially fulfilled his contract. Under this concession it would seem almost idle to examine the authorities. The defendant’s counsel, notwithstanding this concession, seek to bring the case within the following decisions of this court: Gibson v. Cranage, 39 Mich. 49 (33 Am. Rep. 351); Walter A. Wood Machine Co. v. Smith, 50 Mich. 565 (15 N. W. 906, 45 Am. Rep. 57); Plano Manfg. Co. v. Ellis, 68 Mich. 101 (35
Those cases do not control contracts of this character. In Gibson v. Cranage the agreementVas for the painting of a portrait, which should be perfectly satisfactory to the person for whom it was painted. In Walter A. Wood Machine Co. v. Smith a harvesting machine was delivered under a contract of sale, which provided that the purchaser need not keep it unless it worked to his satisfaction. The others are similar cases. In those cases it made no difference what the character of the picture or machine was, or whether the one was properly painted ©r the other properly constructed. Those cases involve no work to be performed according to plans and specifications. In every case but one the vendor retained possession of his property, or it was returned to him when the purchaser had decided that it was not satisfactory. In Koehler v. Buhl the contract was one of employment, the services rendered to be to the satisfaction of the employer. Plaintiff was paid for The full time he worked. Upon being discharged, he sought to recover for the balance of the term of employment. It was held that the employer was not bound to give any reasons for discharging him; it was sufficient that the employer was not satisfied. Contracts of this character are well described in Walter A. Wood Machine Co. v. Smith:
“The cases of this class are generally such as involve the feelings, taste, or sensibility of the promisor, and not those gross considerations of operative fitness or mechanical utility which are capable of being seen and appreciated by others.”
A good illustration of this class of contracts is found in Richison v. Mead, 11 S. Dak. 639 (80 N. W. 131), where R. agreed to sink a well for M. which would produce a
“It will not do for the defendant to say that he is not satisfied with the flow of water, without showing that the supply of water furnished by this well was insufficient for the uses of his farm. ”
Furthermore, the conduct of the defendant, through its inspector and architect and board of public works, estops it from now claiming that the contract was not fulfilled. Its authorized agents were there during the entire progress of the work, charged with the duty to see that it was properly done. The city, through its board of public works, acted weekly upon the reports made, and paid the amounts due for the estimates. The law would not permit defendant to see this work go. on, to ratify it day after day and week after week, to see plaintiff putting in stone not in exact accord with the contract, and then say, when the work is done, “You have not complied with the contract.” Its time to accept or reject was when the work was being done. It could not lull the plaintiff into the belief that this work was satisfactory, and, when completed, reject it. Laycock v. Moon, 97 Wis. 59 (72 N. W. 372); Lauman v. Clark, 73 Ill. App. 659; Ashland Cement Co. v. Shores, 105 Wis. 122 (81 N. W. 136).
We think the court’s instructions are sustained, both by reason and authority. It is unnecessary to discuss the errors assigned upon the refusal to give certain of the defendant’s requests. They are antagonistic to the instructions given, and, under our holding, were properly rejected.
We find no error upon the record, and the judgment is affirmed.