414 not redeemea:by JanuAry, 1stjn6t that he wasobliged'tQpledge thell1 at that. ti,rne or' forfeit all right to them. In my,opinion; upon the' evi" dence now before me in this base" Mr8, Pike, as has a lien on the Swift notes ,or their proceeds, to the extent of $25,000, bnt the decision of thi8 question belnngs to equity suit No. 2,170, where all persons claiming an interest in these, notes are made parties. The moneys in the possession of the defendants the BostonSafe-Depo<Jit & 1'rust Company and the Merohants Nationl\l Bank, referred to in the bill of complaint herein, are held by subject to the orders of this court in said equity suit No. 2.170; and no orders relating to said moneys can properly be made in this suit, which does not include as parties some of the persons who are parties in said equity suit No. 2,170. The bill in this case should be dismissed, with costs. '\
CAMPBELL PRINTL.o\G-PRESS
Co.
tl. THORP
et 01.
(Circuit Court, E. D. Michigan. Octob,er 16, 18!l8.) SALE-W ARRANTY-BREACH-REMEDIES.
Plamtiffagreed to sell defendants certain printing-presses. and guarantied that they should be" free from defective material or workmanship. and do their work satisfactorily." The presses did not do their work satisfactorily to the defendants. nor did they work reasonably well. Defendants did not return the presses, but sought, in an action for the a¥'reed price, to recoup the damages sustained by them. He/d, (1) that the obilgation of the plaintiff was to furnish presses which should work satisfactorIly to the defendants: (2) that the covenant was nofsatistled. even if they worked reasonably well; (8) that there was no method of estimating the difference in value between the presses as they were and such as would have satisliedthe defendants; (4) that defendants were bound to return the presses jf not satisfactory, and that they could not recoup damages in an action for the price. 1
At Law. On exceptions to referee's report. Plaintiff agreed to sell to the defendants certain printing-presses, rollers, and other property connected with a printing establishment, and guarantied that the presses should be "free from defective material or workmanship, and should do their work satisfactorily." The referee, to whom the case was referred, found that neither of the three presses was satisfactory to defendants; nor did they do their work reasonably well; yet he found as a conclusion of law that the plaintiff was entitled to recover the whole agreed price, less a small sum, conceded as a set-off, upon the theory that it was the duty of the defendants to reject the presses if they were not satisfied with them, and that, having kept them, there was no IAn agreement'that the purchaser of an article sold with warranty may rescind the sale if the article is not satisfactory, does not preclude him from retaining it, and recouping damages for breach of the warranty, in an action for the price. Shupe v. Collender. (Conn.) 15 At!. Rep. 405. See, also, note, Id" as to sales on approval. On sales of machinery guarantied to work to the purchaser's satisfaction, he is the sole judge as to its satisfactory operation. Seeley v. Welles, (Pa.) 13 At!. Rep. 736. See note, Id. See, also, Ventilator Co. v. Railway Co., (Wis.) 34 N. W. Rep. 509, and note. "
CAMPBELL
CQ. 'V. THORP.
415
method of estimating the 10s8' they suffered by reason of their dissatis-factionj ioothe1' words, that the value ora press that should work to their satisfaction was not capable of pecuniary estimatii>n. Charle8.A.. Kent, for plaintiff.. ,. · . W.L. Chrpenter, for:defendants. Befote JACKSON, Circuit Judge,and BROWN, District Judge. BROWN, J., (aftR:rstating the facts as above.) The 90rrectness of the referee's ruling depends lal'gelyupon the proper construction of the guar· anty that the presses should be free from defects of material 01' work· Jllanship, andshould do their- 'work satisfactorily· There is no doubt of the general proposition that where one party agrees to do a piece of work tOihe satisfaction of anot,her, the excellence ofwhich work is wholly or in part a matter of taste, such, for instance, as a portrait, a photo': graph or sliit of clothes,a musical instrument, or a piece of furni· ture, the buyer mayreject it without assigning any reason for his dissat· isfaction. In such case· the law cannot' relieve against the folly of the '\Yendor, by inquiring whether the dissatisfaction of the vendee was based upon reasonable grounds or not. It is even doubtful whether it can in· quire into the good faith of ,the vendee's decision. Brown v. Fo8ter, 113 Mass. 136j Mc(hrren v. McNulty, 7 Gray, 139; Gibson v. Oranage, 39 Mich.49j Hoffman v. 6 Daly, 42j Zaleski v. Clark, 44 Conn. 218; McOlure v. B,riggs, 58 Vt. 82, 2 Atl. Rep. 583. The true doctrine is expressed in McOarren v; McNulty, 7 Gray, 139, 141: "It may be that theplaintiff Was injudicious or indiscreet in undertaking to labor and furnish materials fora 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."
Other cases extend the same doctrine to contracts for the performance of labor, or for the support of another to his satisfaction. In sllch case the employer may be wholly dissatisfied with the character oftheservice rendered, or the beneficiary made exceedingly uncomfortabie by his surroundings, without in either case being able to assign what the law would recognize as a sufficient reason for his dissatisfaction. It makes him, however, the sole judge of the reasonableness of his own discontent. Taylm'v. Brewer, 1 Maule & S. 290;R08Biter v. Cooper, 23 Vt. 522; Tyler v. Ames, 6 Lans, 280; Spring v. Clock 00., 24 Hun, 175j Hart v. Rart, 22 Barb. 606jElliB v. Mortimer, 1 Bos; & P.N. R. 257. Whether these words should receive the same construction where the suitl1bleness of the article furnished jnvolves no question of taste or sonal feeling, but simply one of mechanical fitness to do a certain work, or a,ecomplish a certain purpose, admits of some doubt. The authorities are not entirely harmonious, but the decided weight of authority is in favor of the oonstru'ction given ,to it by the referee. So far as this state
416
FEDERAL REPORTER.
is concerned, two decisions seem to put the matter entirely at rest. In Machine 00. v. Smith, 50 Mich. 565, 15 N. W. Rep. 906, it was held that, where the vendor of a harvesting-machine gave a warranty that the con·: tract of purchase should be of no effect unless the machine worked to the buyer's Sdtil'faction, it was held the purchaser had reserved the absolute right to reject the machine, and that his reasons for doing so could not be investigated. A still stronger case is that of Manufacturing Co. v. Ellis, 35 N. W. Rep. 841. Theagreementwasthatacer,taingrain-bindershould {}o good work and "give satisfaction." It was held that, unless thede., fend ant was satisfied with the machine, although it did good ,work, he WllS not bound to purchase. See, also, Platt v. Broderick, 38 N. W. Rep. 579. In the case of Machine Co. v. Ohesrown, 33 Minn. 32, 21 N. W. Rep. 846, plaintiff guarantied to furnish defendant Q. cord-binder gua,rantied to work satisfactorily. It was held that in case, upon reasonable trial, it did not work satisfactorily, it was unnecessary for the. defendant to return it to plaiptiff, but it was sufficient for him, within a. reasonable' time, to notify plaintiff, in substance, that it did not work satisfactorily, and that he declined to accept it. The same ruling was made with regard to a steam-boat, in Gray v. Railrood Co., 11 Hun, 70; with regard, to a machine for generating gas., in Aiken v. Hyde, 99, Mass. 183; with, regard to a fanning-mill, in Good1'ich v. Van Nortwick, 43 Ill. 445; and with regard to a passenger elevator, in Singerly v. Thayer, 108 Pa. St. 291, 2 Atl. Rep. 230. In this latter case a large number of authorities are -cited by counsel and court to the same effect. The New York cases at first blush would seem to lay down a different rule, but when carefully -examined the difference is more apparent than real. The earliest case iEl that of Folliard v. Wallace, 2 Johns. 395, in which onecovenanted that iJ;!; case the title to a lot of land conveyed to him should prove good and suf., ficient in law, that he would pay to a third, party, three months after he should be well satisfied that the title was undispllted and good against all other claims. It was held that the award of certain commissioners' on the title in favor of the covenantor ought tosa:tisfy him, and thatit: was not enough for the defendant to allege that he Was not satisfied with the title without some good reason being assigned for his dissatisfaction" and that he was not to judge for himself, but that the law would determine when he ought to be satisfied. Chancellor KENT, who delivered the opinion, observed that "if the defendant were left at liberty to judge for himself when he were satisfied, it would fatally destroy the obligation, and the agreement would be absolutely void." In City oj Brooklyn v. Railway 00., 47 N. Y. 475, an action was brought upon a covenant in which the defendant agreed to keep the pavement of certain streets in thorough repair within the tracks, etc., under the direction of such ,competent authority as the common council might designate. The court held that, if the pavement were kept in thorough repair, it was sufficient, though it was kept up without direction from the,eompetent authority ,designated by the common council. "That which the law shall say a eontraeting party ought in reason to be satisfied with, that the law will say he is satisfied with." A like ruling:was made inMieBell v.In8Urance
CAMPBELL PRINTING-PRESS CO. V. THORP.
417
00., 76 N. Y. '115, with reference to the certificate of a physician in a life insurance case; and, finally, in Boiler Co. v. Garden, 101 N. Y. 387, the parties entered into a contract by which plaintiff agreed to alter certain boilers belonging to defendants, for which the defendants agreed to pay the stipulated price "as soon as they are satisfied the boilers as changed are a success.", In an action'to recover the contract price, the defendants claimed the question as to whether the work was a success was one alan" for them to determine. This was held to be untenable, and that a simple allegation of dissatisfaction without a good reason ther£Jfor was no defense. The prior cases were quoted as settling the law in that state. None of these cases, however, related to the sale of manufactured articles. In none of them was there an opportunity for a rescission, and restoring the parties to their 8tatu quo. The last case particularly is much like that of Iron 00. v: Best. 14 Mo. App. 503, hereafter cited, anel is subject to the same criticism. Notwithstanding the cases in New York, and admitting all that is claimed for them, the weight of authority as well as of reason inclines us to the opinion that the parties must stand to their contract as they have made it, and if the vendor has agreed to furnish an article that shall be satisfactory to the vendee, he constitutes the latter the sole arbiter of his own 8atisfaction. It is entirely well settled that if the acceptance of a machine is made dependent upon the approval' of an engineer, or if a pavement is to be laid to the satisfaction of a street commissioner, or if lumber is to be scaled by an inspector, the decision of such agent, in the absence of fraud, bad faith, or clear error, is conclusive. We know of no reason of public policy which prevents parties from contracting that the decision of one or the other shall be conclusive. In the case of chattel mortgages the rule is entirely well settled that, if the mortgage provides that mortgagee may take possession whenever he deems his security unsafe, the mortgagor thereby submits himself to the judgment of the mortgagee on the question of security, and the latter is not bound to however, esprove circumstances justifying his action. Certain tablish a reasonable modification of this rule, to the effect that the dissatisfaction must be real, and not feigned, and that the vendee is not at liberty to say he is dissatisfied when in reality he is not; in other words, that his discontent must be genuine. J.lfanufacturing Co. v. Brush, 43 Vt. 528; D{Lggett v. Johnson, 49 Vt. 345; McClure v. Brigg8, 58 Vt. 82,2 Atl. Rep. 583. The same cases, however, hold that, while the vendee is bound to act honestly, it is not enough to show that he ought to have been satisfied, and that his discontent was without good reason. See, also, Lynn v. Railroad Co., 60 Md. 404; Railroad Co. v. Brydon, 65 198, 611,3 Atl. Rep. 306, and 9 Atl. Rep. 126. ' In Manufacturing Co. v. Chico, 24 Fed. Rep. 893, it was held that where, under a contract, a fire-engine was to be made and delivered which should be satiefactory to the purchaser, it must in fact be satisfactory to him, or he is not bound to take it; but that, where the purchaser was in fact satisfied, but fraudulently, and in bad faith, declared that he was not satisfied, the contract had been ftilly performed by the vendor, and thepufchaserwas bound to accept v.36F.no.7-27
418, the article.' This. I regard as an accurate summary of the whole .law upon the subject. Some doubt is thrown upon this case by the stipulation that the presses shall work satisfactorily , without stating the person to whom they shall be satisfactory. We. think, however, that there can be but one tion fairly given to these words. When, in com.monlanguage, we speak of making a thing satisfactory, we mean it shall be satisfactory to the son to whom we lurnish it. It would be nonsense to say that it should be satisfactory to the vendor. It would be indefinite to say that it should be satisfactory to a .third person, without designating the person. It can only be intended that it shall be satisfactory to the person who is himself ested in its satisfactory operation, and that is the vendee. This was the view taken of simHar words in Taywr v. Brewer, 1 Maule & S. 29Q; chine Co·.v. OhesroW'n" 33 Minn. 32, 21 N. W. Rep . .846; and in Singerly v. Thayer, 108 Pa. St. 291, 2 Atl. Rep. 230. The case of Iron Co. v. Best, 14 Mo. App.503, is clearly qistinguishable from the cases last cited. In this case defendant agreed to build an air.,.furnace in plaintiff's warehouse, according to a plan to be furnished by himself. The furnace came attached to the freehold of the plaintiff, and was incapable of sev· erance. It was a structure into which the plaintiff had put all the ma· terials and the defendant had put all the labor. Defendant could take away the materials; because they were not only attached to plain. tiff's freehold,. but actually belonged to him. His labor was gone, and could not be recalled. To permit the plaintiff, under such circumstances, to refuse to pay, if in fact the furnace wnrked reasonably well, and at the same time to retain the fruits of defendant's labor, would have been an unwarrantable extension of the doctrine applied to machines or articles of manufacture which can be The court very properly held that the covenant was satisfied if the furnace worked reasonably well. Conceding, then, that the plaintiff was bound to furnish presses that should work satisfactorily to the defendants, it is very evident that they were not satisfied with thE'ir operation, and that they had reasonable grounds for their dissatisfaction, as the referee finds that the presses neither worked to their satisfaction, nor teasonably well. This undol;lbtedly gave them the power to reject the machines. Instead of doing this, however, they kept them, and now seek to recoup their damages by reason of their failure to work as they ought to. Had the covenant been that the presses should work well,we should have no doubt that the defendants migllt have recouped such damages,and that the referee would have found them capable of estimation. These damages would have been the difference in value betweep presses which would work reasonably well and those which were actually furnished. But in attempting to apply the same rule in the present oose. we encounter a formidable difficulty from the impossibility of fixing thCi\ value of machines whjch shall work to the satisfaction of the, defendants. It will not do to say that such value is to be gauged . by that of a machine which shaH work reasonably well, because such II. press mjghtnot have been satisfactory to the vendee, or he might have been content with one which would not have worked to the satis-
1M :rlE TERRY.
1'actionof 'expert!! in thebusinesi. Wethtnk that; having elected to retain the presses, they are bound to pay the full price for them. The exeeptions to the referee's report will therefore be overruled, and judgment entered upon his
In re
TERRY;
(Circuit (Jourt, D. (Jalijornia, No D. September 17, 1888.) CONTEMPT-Pul'fISIDIENT-IMPRISONMENT-REMIIlSION.
Defendant and his wife were present in court, of which he was an attorney, during the reading of an opinion in a cause to which they were parties; ana the latter. rising. addressed the presiding justice. ·and charged him with having been bribed to render the decision. She refusing to be silent, the officer, under order of the court. attempted to remove her, when defendant struck him a severe blow. Both she and defendant resisted. using profane. opprobrious. and threatening language towards court, officers, and those assisting, and were only overcome by force. Defendant attempted to draw a bowie-knife immediately after striking the marshal, and as be was going out of the courtroom succeeded in drawing it. and in the corridor adjoining brandished it, with threats. until it was forcibly taken from him. His wife also had a loaded pistol in her satchel. He was sentenced to six months' imprisonment for contempt. and. after a few days. presented a petition for release; which stated that he did not intend to say or do anything disrespectful to the court or any of its judges. and attempted a justification. but misstated the facts, as known to the court and set forth in the atlidavits of others present; and expressed no regret for his acts. Held, that the sentence should not be remitted; that the forcible resistance to an officer of the United States in the execution of the lawful orders of their courts was an indignity and insult to the power and authority of the government. which were not el'tenuated by any averment tllRt no diSrespect was intended to the courts making the orders.
Commitment for Contempt. On September 3, 1888, while the juoges of the United States circuit court, holden at San Francisco, were delivering their opinion in the cases of Frederick W. Sharon against David S. Terry and wife, and Francis G. Newlands and others against the same defendants, Mrs. Terry, one of the defendants, interrupted Mr. Justice FIELD, who was reading the opinion, and was guilty of such misbehavior in the presence of the court that the marshal was ordered by the court to remove her from the courtroom. The marshal proceeded to execute this order, when he was assaulted and beaten, in the presl:'nctl of the court, by Terry, who at the same time thrust his right hand under his vest, where he had a bowieknife concealed on his person, apparently for the purpose of drawing it, when the deputy-marshals and citizenl;1 present promptly laid hold ot him, and restrained further violence until Mrs. Terry was taken from the courtroom. When ,,;as done, Terry was allowed to leave the court-room, and was accompanied by officers to the door leading to the adjoining corridor. As he was about leaving the room, he drew a bowie-knife from hill bosom, and as he stepped into the corridor he brandished it, with threats of violence against those who opposed his going to his wife, when