his right to rescind is his good faith, and not the reasonableness of his dissatisfaction.118 And it may be evident from the terms of the contract or the surrounding circumstances that it was the intention of the parties to permit a rejection of the title offered on a simple expression of dissatisfaction with it, without giving reasons, which intention will of course govern.

119

There is another class of cases in which it is held that a contract, agreed to be completed to the "satisfaction" of a party, cannot be repudiated on a merely arbitrary expression of dissatisfaction, but only on showing a dissatisfaction which is reasonable and well-founded. These are cases in which the other party would suffer irreparable loss by the failure of the contract, or could not be restored to his former situation. "If one is induced to expend money or labor in the production of some article, or in the improvement of another's property, under a contract which binds him to do the work in a satisfactory manner, the one party cannot ordinarily retain the benefit of what has been done, and yet repudiate the obligation to pay therefor, by merely claiming that the contract has not been performed in a manner satisfactory to him. If the work or labor has been reasonably performed, according to the terms of the contract, it is held that the party is bound to be satisfied therewith because he has received all he contracted for." 120 Thus, where a contractor agrees to furnish the material and to erect on the land of a municipal corporation a garbage furnace, according to plans and specifications, which are a part of the contract, and warrants its capacity to consume a named quantity of garbage without emitting offensive odors, to be paid for when completed and tested to the satisfaction of a committee of the town council, and the contractor performs the contract according to the plans and specifications, and, the test being made, the furnace is shown to have the capacity warranted, and in all things to comply with the contract, the committee cannot defeat the contractor's right of recov

118 Liberman v. Beckwith, 79 Conn. 317, 65 Atl. 153, 8 Ann. Cas. 271; Sanger v. Slayden, 7 Tex. Civ. App. 605, 26 S. W. 847.

119 Giles v. Paxson (C. C.) 40 Fed. 283. 120 Giles v. Paxson (C. C.) 40 Fed. 283.

ery by capriciously and unreasonably refusing to express its satisfaction with the work.121 On the same principle, where a heating apparatus satisfactory to the promisor was to be furnished, it was held that the satisfaction was to be "determined by the mind of a reasonable man, and by the external measures set forth in the contract, not by the private taste or liking of the defendant." And in reaching this conclusion, the court was influenced somewhat by the fact that the consideration furnished "was of such a nature that the value will be lost to the plaintiff either wholly or in great part" by a different construction.122 In another case, the plaintiff by contract agreed to alter certain boilers in a manner specified, the stipulated price for the work to be paid by the defendants as soon as they were satisfied that the boilers as changed were successful. It was held that a simple allegation of dissatisfaction on the part of the defendants, without a good reason, was no defense to an action for the price. 128 And again, "satisfaction," as used in a contract providing that work shall be done to the satisfaction of the architect, means a legal satisfaction; and though the architect capriciously and arbitrarily refuses to be satisfied, yet if the work has been performed substantially in compliance with the contract, the law will hold the architect to be satisfied.124 And in a railroad construction contract, an agreement to do the work to the "full satisfaction" of the company does not of itself give the company power arbitrarily to rescind the contract, but means that the work must be done to its satisfaction, not unreasonably withheld.125 So, a contract to instal a patent passenger elevator which is "warranted satisfactory in every respect," means satisfactory to the purchaser, and though a bona fide

121 Parlin & Orendorff Co. v. City of Greenville, 127 Fed. 55, 61 C. C. A. 591.

122 Hawkins v. Graham, 149 Mass. 284, 21 N. E. 312, 14 Am. St. Rep. 422.

123 Duplex Boiler Co. v. Garden, 101 N. Y. 387, 4 N. E. 749, 54 Am. Rep. 709.

124 Pollock v. Pennsylvania Iron Works Co., 13 Misc. Rep. 194, 34 N. Y. Supp. 129. Compare Harder v. Marion County Com'rs, 97 Ind. 455.

125 Lee v. New Haven, M. & W. R. Co., Fed. Cas. No. 8,197.

objection by him to its working will be a sufficient defense to an action for the price, yet he cannot reject it out of mere caprice.126 In another case, the contract sued on was for staining and rubbing the woodwork in two houses owned by defendant. The work was to be done in the best workmanlike manner and to the "entire satisfaction" of the owner. The court held that if it was done in the best workmanlike manner, the owner could not defeat recovery of the price agreed to be paid by arbitrarily and unreasonably declaring that it was not done to his satisfaction.127 But the rule stated in these cases sometimes comes into conflict with the rule set forth above, that articles designed primarily to satisfy the taste, liking, or individual judgment of the person for whom they are made must be absolutely satisfactory to him or else they may be rejected. Thus, in a case in Massachusetts, the plaintiff agreed to make and deliver to the defendant a suit of clothes, which were to be made to the defendant's satisfaction. It was held that the latter had the absolute right to refuse the suit if he was not satisfied with it, and that his reasons for so refusing could not be required of him.128

It is also necessary to distinguish carefully between a written guaranty that the article in question will give satisfaction and an oral representation that it will do so. Both are expressions of opinion as to something to occur in the future. But a representation of that kind gives no right of rescission, whereas a guaranty to that effect becomes a part of the contract, and if the purchaser is not satisfied, he may rescind for the breach of the contract.129 In any event, where such a right of rejection is reserved, and the purchaser wishes to avoid liability for the price, he is bound to make some sort of test, trial, or at least inspection to determine the unsatisfactory character of the article, to give unequivocal notice of his dissatisfaction and rejection of it,

126 Singerly v. Thayer, 108 Pa. 291, 2 Atl. 230, 56 Am. Rep. 207. 127 Doll v. Noble, 116 N. Y. 230, 22 N. E. 406, 5 L. R. A. 554, 15 Am. St. Rep. 398.

128 Brown v. Foster, 113 Mass. 136, 18 Am. Rep. 463.

129 Fuchs & Lang Mfg. Co. v. R. J. Kittredge & Co., 242 Ill. 88, 89 N. E. 723.

BLACK RESC.-32

and to return or offer to return the article with reasonable promptness.180 If a vendee accepts, after a fair trial, an article sold under an agreement that he may return it if unsatisfactory, he cannot afterwards rescind the contract.181

§ 193. Allowance for Tare, Tret, Leakage, etc.-A deficiency in the quantity or quality of that which is the subject of a contract of sale is not ground for rescinding the contract when it results only from such circumstances as the allowance for tare or tret, unavoidable leakage, accidents in transportation, or such other causes as are usually and commercially taken into consideration and allowed for. Thus, where casks of water were packed in a foreign country, in casks of one hundred stone jugs to each, and it is shown that such casks cannot be transported without some breakage of the jugs, this circumstance must be considered as having entered into the contract, and if the actual breakage is not beyond what is usual, the buyer cannot refuse to receive the consignment and rescind the contract.132 On somewhat similar principles, where a merchant directs another to have shipped to him corn of a certain grade, over a certain railroad, the weight and grade to be evidenced by an official certificate, the fact that the corn while in transit becomes heated will not excuse the vendee from payment of the price.133

§ 194. Offer or Opportunity to Make Good Defect.Numerous decisions maintain the rule that a buyer is not justified in rescinding the contract on account of deficiency in quantity or quality of the goods delivered, when the defect can be remedied, the deficiency supplied, or the inferior portion of the goods replaced by others, and the seller offers to do so and has the ability to do so, and will act within a

130 Waters Heater Co. v. Mansfield, 48 Vt. 378; Dewey v. Borough of Erie, 14 Pa. 211, 53 Am. Dec. 533; Avery v. Cullen, 15 Cal. App. 413, 114 Pac. 1022; Rose v. Monarch, 150 Ky. 129, 150 S. W. 56, 42 L. R. A. (N. S.) 660, 667.

131 McGill v. Hall (Tex. Civ. App.) 26 S. W. 132.

132 Hays v. Smith, McGloin (La.) 193.

133 Champlin v. Church, 76 N. J. Law, 553, 70 Atl. 138, 19 L. R. A. (N. S.) 261.

reasonable time.134 But this rule has been denied,135 the cases holding that the consent of both parties to any modification of a contract of sale, or to the substitution of satisfactory goods for those found to be inferior, is just as necessary as it is to the making of the original contract.136 In a case in Michigan, a person ordered a monument with certain inscriptions to be erected in his cemetery lot, but when it was set up, it was discovered that a material part of the inscription had been omitted. The makers were notified of the defect and proposed to remedy it, but the purchaser declined this proposition, and declared the order rescinded. The makers insisted on their right to furnish another monument, but when the second arrived it was found to be broken, and the purchaser forbade the erection of it. Afterwards a third monument was sent and was set up without the purchaser's knowledge. The contract provided that the makers should furnish the monument as soon as convenient, but not that they should be allowed to remedy defects, or furnish another monument in case the first failed to meet the requirements. It was held that, inasmuch as the defect in the first monument was admitted, the contract was at an end when the purchaser refused to accept it, and that he was not obliged to accept another.137 In another case, the contract called for a completed windmill, the work and material guarantied first-class, and after construction the mill was rejected because the tower was too slight to support the tank, and the builder was notified to remove it, despite his offer to put up another tower. It was held that, the defect being material, the purchaser had the right to terminate the contract and require the removal of the mill, without regard to the seller's offer.138 There are even some cases

134 Clark v. Wheeling Steel Works, 53 Fed. 494, 3 C. C. A. 600; Vallens v. Tillmann, 103 Cal. 187, 37 Pac. 213; Bender v. Lundberg, 152 Ill. App. 326; Black v. Herbert, 111 Mich. 638, 70 N. W. 138; Baylis v. Weibezahl, 42 Misc. Rep. 178, 85 N. Y. Supp. 355; Githens v. Zorn, 1 Wkly. Notes Cas. (Pa.) 118; Geiser Mfg. Co. v. Lunsford (Tex. Civ. App.) 139 S. W. 64.

135 Russell & Co. v. Hudson (Tenn. Ch. App.) 37 S. W. 1001. 186 Woodward v. Libby, 58 Me. 42.

137 American White Bronze Co. v. Gillette, 88 Mich. 231, 50 N. W. 136, 26 Am. St. Rep. 286.

138 Fisher v. Goodrich, 61 App. Div. 534, 70 N. Y. Supp. 38.