have been immaterial to the defendant, and, if not, may be fully compensated in damages. The result is that these contracts were not for the sale and delivery, or the manufacture and delivery, of marketable commodities. They were contracts for artistic skill and labor, and the materials on which they were to be bestowed in the manufacture of articles which were not salable to any one but the defendant when completed because impressed with special features useful only to it. There was nothing in the contracts or their subject-matter indicating any intention of the parties that the stipulations as to time should be deemed of their essence; and the defendant was not justified on account of the slight delay disclosed by the record in refusing to accept the goods, or in repudiating the entire contract. This conclusion disposes of the case, and it is unnecessary to notice other errors assigned. The judgment below is reversed, and the cause remanded for further proceedings not inconsistent with this opinion. SECTION 5.-PERFORMANCE TO THE SATISFACTION OF ANOTHER AS A CONDITION PENNINGTON v. HOWLAND. (Supreme Court of Rhode Island. 1898. 21 R. I. 65, 41 Atl. 891, Action by Harper Pennington against Samuel S. Howland. There was a verdict and judgment for plaintiff. STINESS, J. The plaintiff was employed to paint a pastel portrait of the defendant's wife for the sum of $500, under a contract by correspondence, which only provided for the price. The plaintiff went to the defendant's house, in Washington, D. C., and began his work. The defendant testified that he at once objected to the proposed portrait, in street dress and hat; but the plaintiff said it was an artistic idea, which he wished to carry out, and that, if it was not satisfactory, he would paint the defendant one "until satisfied." He also testified that the plaintiff undertook the commission with the understanding that he would paint a satisfactory portrait. The plaintiff denies this, and says that, upon the completion of his work, Mrs. Howland said that she wanted another portrait, taken in a different style of dress, to show a pearl necklace which had belonged to her mother. He then painted a second portrait, and went away, leaving his implements, as he says, to be sent to him, or, as the defendant says, because the portrait was not finished, and because he was to return to complete it. The defendant says that he received a letter from the plaintiff stating that the pictures should be framed to keep the pastel from brushing off, and that he would give instructions to a man, whom he usually employed, to do it. The frames came, the pictures were put into them, and, after some correspondence, the defendant paid for them, and the pictures are still in his possession. Upon this general statement of testimony, the plaintiff's claim was that he painted one portrait at an agreed price, and then another upon request, for which he had charged the same price, and that both were not only without conditions, but were said to be satisfactory. The de fendant claims that the plaintiff agreed upon starting his work that, if the picture was not satisfactory, he would paint another; that, after expressing his dissatisfaction, the plaintiff immediately started another, which he did not finish; that the pictures were framed simply to preserve them until the last one should be finished; and that they have since remained with him in that way. These conflicting claims present obvious questions of fact for a jury. Numerous exceptions were taken at the trial, which can be better considered generally than in detail. According to the defendant's statement that the work was to be satisfactory to him, he asked the court to instruct the jury that he had the right to reject the first portrait, if he was not satisfied with it. The judge instructed the jury that "satisfactory" means "reasonably satisfactory," but, in response to another request, he also instructed the jury that "an artist, if he agreed to paint a picture to one's satisfaction, has no cause of action for the price unless the buyer is satisfied, however good the picture is"-adding: "But, unless the man returns the picture, he is conclusively held to be satisfied." This last instruction, without the added sentence, states the law correctly, according to the current of authority; and, in giving the preceding instruction that a portrait must be "reasonably satisfactory," the judge doubtless had in mind another class of cases to which that limitation may apply. When the subject of the contract is one which involves personal taste or feeling, an agreement that it shall be satisfactory to the buyer necessarily makes him the sole judge whether it answers that condition. He cannot be required to take it because other people might be satisfied with it, for that is not what he agreed to do. Personal tastes differ widely, and, if one has agreed to submit his work to such a test, he must abide by the result. A large number of witnesses might be brought to testify that the work was satisfactory to them, that they considered it perfect, and that they could see no reasonable ground for objecting to it. But that would not be the test of the contract, nor should a jury be allowed to say in such a case that a defendant must pay because, by the preponderance of evidence, he ought to have been satisfied with the work, or, in other words, that it was "reasonably satisfactory." Upon this principle numerous cases have been decided. In McCarren v. McNulty, 7 Gray (Mass.) 139 (an action to recover the price of a bookcase), the court said: "It may be that the plaintiff was injudicious or indiscreet in undertaking to labor and furnish material for a compensation the payment of which was made dependent upon a contingency so hazardous or doubtful as the approval or satisfaction of a party particularly in interest. But of that he was the sole judge. Against the consequences resulting from his own bargain, the law can afford him no relief. Having voluntarily assumed the obligations and risk of the contract, his legal rights are to be ascertained and determined solely according to its provisions." Gibson v. Cranage, 39 Mich. 49, 33 Am. Rep. 351, was to the same effect, where the subject of the action was a portrait. In Zaleski v. Clark, 44 Conn. 218, 26 Am. Rep. 446, the plaintiff was to make a bust of the defendant's deceased husband satisfactory to her. The court held that it was for her alone to determine whether it was so, and that it was not enough to show that her dissatisfaction was unreasonable. Brown v. Foster, 113 Mass. 136, 18 Am. Rep. 463, was for a suit of clothes. Devens, J., said: "It is not for any one else to decide whether a refusal to accept is or is not reasonable, when the contract permits the defendant to decide himself whether the articles furnished are to his satisfaction." The doctrine was carried to very great length in Singerly v. Thayer, 108 Pa. 291, 2 Atl. 230, 56 Am. Rep. 207, where an elevator had been erected in a building, and "warranted satisfactory in every respect." It was held that, if it had been substantially completed so that the owner of the building could understand how it would operate, it could be rejected if it was not satisfactory. In Boiler Co. v. Garden, 101 N. Y. 387, 4 N. E. 749, 54 Am. Rep. 709, the opinion sets out the two classes of cases with reference to which a distinction has been made. One class is that which involves personal taste and judgment, examples of which we have shown; and the other class is that where the subject-matter of the contract is such that the satisfaction stipulated for must be held to apply to quality, workmanship, salability, and other like considerations, rather than to personal satisfaction. For example, if one agrees to sell land with a satisfactory title, and shows a title valid and complete, the parties must have intended such a title to be satisfactory, rather than to leave an absolute right in the purchaser to say "I am not satisfied," when no reason could be shown why he should not be satisfied. So, if one agrees to do work in a satisfactory manner, it must mean a workmanlike manner—as well as it would be expected to be done-rather than a merely personal or whimsical rejection. It is this class of cases to which the term "reasonably satisfactory" applies. Hence in the boiler case, last cited, it was held that a simple allegation of dissatisfaction, without some good reason assigned for it, might be a mere pretext, and would not be regarded. In Machine Co. v. Smith, 50 Mich. 565, 15 N. W. 906, 45. Am. Rep. 57, the court says: "In the one class the right of decision is completely reserved to the promisor, without being liable to disclose reasons or account for his course; and a right to inquire into the grounds of his action and overhaul his determination is absolutely excluded from the promisee and from all other tribunals. In the other class the promisor is supposed to undertake that he will act reasonably and fairly, and found his determination upon grounds which are just and sensible; and from thence springs a necessary implication that his decision, in point of correctness and the adequacy of the grounds of it, is open to consideration, and subject to the judgment of judicial triors." Even in cases of the latter class, where a rejection is made in good faith, the dissatisfaction of the purchaser is held in many decisions to be sufficient. * * * The instruction to the jury in the present case that "satisfactory" means “reasonably satisfactory" was erroneous as applied to the subject-matter of the alleged contract. ** New trial granted. SECTION 6.-PROCURING CERTIFICATE OF AN NOLAN et al. v. WHITNEY. (Court of Appeals of New York, 1882. 88 N. Y. 648.) One Michael Nolan, entered into an agreement with the defendant to do some mason work in the erection of two buildings for the sum of $11,700 to be paid in installments as the work progressed. The last installment of $2,700 was to be paid thirty days after completion of the work which was to be performed to the satisfaction and under the direction of the architect, to be attested by his certificate, before any payment could be required to be made. All the installments were paid except the last, and Nolan, claiming that he had fully performed his agreement, commenced this action to recover that installment. The defendant alleged that Nolan had not fully performed his agreement according to its terms and requirements, and also that he had not obtained the architect's certificate, as required by the agreement. Upon the trial the defendant gave evidence tending to show that much of the work was imperfectly done, and that the agreement had not been fully performed on the part of Nolan; the latter gave evidence tending to show that the work was properly done, that he had fairly and substantially performed his agreement, and that the architect had refused to give him the certificate which would entitle him to the final payment. The referee found that Nolan completed the mason work required by the agreement according to its terms; that he substantially complied with and performed the requirements of his agreement; but that there were trivial defects in the plastering for which a deduction of $200 should be made and he ordered judgment in favor of Nolan for the last installment, less $200. THE COURT in their opinion say: "It is a general rule of law that a party must perform his contract before he can claim the consideration due him upon performance; but the performance need not in all cases be literal and exact. It is sufficient if the party bound to perform, acting in good faith, and intending and attempting to perform his contract, does so substantially, and then he may recover for his work, notwithstanding slight or trivial defects in performance, for which compensation may be made by an allowance to the other party. Whether a contract has been substantially performed is a question of fact depending upon all the circumstances of the case to be determined by the trial court. *** According to the authorities cited under an allegation of substantial performance upon the facts found by the referee, Nolan was entitled to recover unless he is barred because he failed to get the architect's certificate which the referce found was unreasonably and improperly refused. But when he had substantially performed his contract, the architect was bound to give him the certificate, and his refusal to give it was unreasonable, and it is held that an unreasonable refusal on the part of an architect in such a case to give the certificate dispenses with its necessity." HEBERT v. DEWEY. (Supreme Judicial Court of Massachusetts, 1906. 191 Mass. 403, 77 N. E. 822.) KNOWLTON, C. J. The first of these actions was brought by the plaintiff's intestate to recover upon a contract in writing for building a house for the defendant. * * * The defendant contended that the plaintiff could not recover under the contract, because her intestate failed to obtain from the architect a certificate that the final payment was due. The question is whether a sufficient justification was shown for this failure. The instruction to the jury on this point was as follows: "If the defendant's architect capriciously withheld the final certificate, and capriciously allowed the contractor to believe that nothing more remained to be done to entitle him to such certificate, the contractor is thereby relieved from his obligation to secure the certificate." This was in accordance with the plaintiff's request, except that the judge left out the word "fraudulently" which was used in the request with "capriciously." The law bearing upon this part of the case has not been definitely settled in this commonwealth. There is a class of cases arising under policies of insurance and other similar contracts, in which it is held that the procurement of the certificate, called for by the contract, is a condition. precedent to the plaintiff's recovery. The reason why it is not open to the plaintiff in these cases to show that he could not obtain the certificate, is because the nature of the contract and the purpose of the requirement of a certificate are such as to make the recovery conditional upon the presentation of the paper. In such contracts the plaintiff takes upon himself the obligation to furnish the required proof, and assumes the risk of whatever difficulty there may be in procuring it. * * * * * * Whether a contract is of this kind is a question of construction, dependent upon the meaning of the parties, as ascertained from the writing. A provision for a certificate by an architect, in a building contract, stands differently. The architect is the agent of the owner, to perform an act for the convenience of both parties, in regard to a matter with which he is directly connected as an employé. It is assumed by the contracting parties and implied in the contract that he will do his duty, and will act in good faith in determining whether a certificate should be granted. In cases under provisions like the one before us, it is everywhere held that the contractor may recover without a certificate, if the circumstances relieve him from the obligation to obtain one. What circumstances are sufficient for this purpose is the only question. If the owner wrongfully interferes to prevent the giving of a certificate, it is universally held that this will entitle the contractor to recover without it. * * Many of the authorities are to the effect that any wrongful refusal of the architect to give a certificate will entitle the contractor to proceed without one. In some of the cases it is said that if the architect unreasonably refuses to give a certificate it is enough. * In others it appeared that he refused "dishonestly and arbitrarily," or "willfully and fraudulently," or "capriciously." * * * * * * In the present case there was evidence from which the jury might have found that after a complete performance of the contract the plaintiff's intestate applied to the architect for the final certificate, and he willfully and fraudulently refused to give it. It is plain that in |