173 Mass. 356 | Mass. | 1899
This is an action upon a contract under which the plaintiff constructed an equipment for melting brass for the defendant. The contract was in writing. By one clause of it the plaintiff agreed “ to place the above named outfit in operation for sixty days’ trial for the approval of the second party, and if the results obtained after the trial are in accordance with the specifications above and satisfactory to the second party, the second party further agrees to pay for the above named
The questions raised by the exceptions are whether the defendant’s liability was conditioned upon actual satisfaction, even if the dissatisfaction was unreasonable, so long as it really was felt, and perhaps whether the defendant was bound to let the experiments continue for sixty days. We are of opinion that the defendant did not lose its right 'to insist upon its fundamental defence by the course of the trial. We are of opinion, also, with some slight hesitation on my part, that the defendant’s liability was conditioned as above suggested, and that bona fide even if unreasonable dissatisfaction of the defendant is an answer to the plaintiff’s claim. The plaintiff undertakes to put in the work “ for the approval of the ” defendant, and the defendant undertakes to pay only if the results are in accordance with tlie specifications “ and satisfactory ” to it. The exceptions state the substance of the evidence, but it does not appear to be material except so far as it shows that putting in the proposed equipment involved a considerable change in the defendant’s business, and that it seems to have been regarded as more or less of an experiment, which facts confirm and give a reason for the interpretation which we adopt. Furthermore, the contract does not provide a test alternative to satisfaction, as was the case in Hawkins v. Graham, 149 Mass. 284, where the money was to be paid after acknowledgment of satisfaction by the defendant “ or the work demonstrated.” It almost follows from our interpretation that, as soon as the defendant was convinced that the work was unsatisfactory, it had a right to stop it. The provision for sixty days’ trial was an undertaking of the plaintiff for the defendant’s advantage, to insure it whatever knowledge it wanted in order to decide.
We have assumed, without discussion, that the defendant was bound to good faith in deciding and in expressing its decision, and that such an arrangement limited its absolute freedom to do as it chose sufficiently to be entitled to the name of a contract.
Exceptions sustained.