The appellee would have us read out the "judgment and discretion of the contractor” clause from the contract and place the whole question on a quantum meruit basis, whereas the appellant insists that under this covenant it had an unbridled discretion as to how much water it cared to use on the grass. The trial judge, we think correctly, steered a middle course as shown by his instructions to the jury that "if you find from the evidence that all of the 7,281,500 gallons of water for which plaintiff seeks compensation in this case was in excess of the amount of water which the plaintiff in the exercise of a good faith judgment should have placed on the project, then your verdict should be for the defendant.” This follows the time honored rule that where a decision is left to the discretion of a designated entity, the question is not whether it was in fact erroneous, but whether it was in bad faith, arbitrary or capricious so as to amount to an abuse of that discretion. "Where the manner of performance is left more or less to the discretion of one of the parties to the contract, he is bound to the exercise of good faith.” 17A CJS 707, Con
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tracts, §494 (1). Such is the rule where acceptance of the work is conditioned upon the satisfaction of the opposite party.
Commercial Mortgage &c. Corp. v. Greenwich Savings Bank,
From what has been said it is evident that the court’s instruction to the jury above quoted was substantially correct. This instruction also forms a basis of the fourth enu
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meration of error. There was no substantial error in the charge, harmful as a matter of law
(Code Ann.
§ 70-207 (c)). The mere objection to the giving of a numbered request to charge without stating any grounds therefor is not a compliance with this section, for which reason the instruction will not be subjected to more detailed analysis.
Louisville & N. R. Co. v. Moreland,
Judgment affirmed.
