#### Olin D. Gray, App’lt, *v.*The Alabama National Bank, Resp’t.1

*(New York Common Pleas, General Term.,*

*Filed April 20, 1891.)*

1. Contract—Work to be performed to the satisfaction of employer.

Where a contract provides that the work shall he done to the satisfac*170tion of the employer, and the work 'to be done involves a matter of taste and personal preference, a recovery cannot be had without showing that the employer was satisfied.

2. Same.

Plaintiff’s assignor entered into a contract with defendant to print steel plate drafts, the contract providing that the president of defendant was to have “a satisfactory design” for the plate. Designs were submitted which were rejected as defective, the president pointing out the defects The third design was also rejected, the president referring to a return to errors formerly corrected, and stating that enough time had been wasted on the matter; after which the work was given toother parties. *Held.*that as the president was not shown to be satisfied no recovery could be had; that the fact that he permitted plaintiff's assignor to go on after the rejection of the third proof, and make alterations, does not entitle plaintiff to recover as for a performance or a prevention of performance; nor does the fact that he suggested alterations constitute an estoppel under the circumstances.

Appeal from judgment of the general term of the city court of New York, affirming judgment in favor of defendant

*Wm. B.*Ellison, for app’lt; *T. Frank*Brownell, for resp’t.

1

 Affirming 30 N. Y. State Rep., 824.

Daly, Ch. J.

About June 8, 1887, the defendant, The Alabama National Bank, having its office in Birmingham, Ala., by its president, gave to the plaintiffs assignor, The August Gast Bank Note & Lithographic Company, doing business in St. Louis, Mo., an order to make 50,000 steel plate drafts, to be delivered and paid for in two lots of 25,000 each; the first delivery by November 15, 1887. This order was given upon the solicitation of a traveling salesman of the Lithographic Company, and was in writing, and contained a provision that it was given upon the understanding that the president of the bank was to have “a satisfactory design ” for the plate from which the drafts were to be engraved.

The first design was submitted to the president on July 5,1887, and he requested a new design, which was submitted on July 16th. The second design was returned on July 19th to the Bank Note Company with a letter, in which the president stated that he liked it better than the first, but still it did not strike him as being a handsome check, and he specified five features in it which he said he did not like. The company, on - July 25th, replied in a letter, in which they assumed that the work was done to his liking with the exception of some minor matters of detail, and stated that they would follow his instructions, and show him a complete proof before printing. No answer was made to this letter. On September 8th the company sent a third proof of the design, and, on the 12th, the president wrote them as follows:

> “ Yours enclosing check received. In this sample you return to errors corrected in other, *e.*<?., scroll work around name. I do not wish to appear captious about the thing, but really none of the samples you send me suit me. It is possibly my fault, but all the same unless I can get something that does please me I don’t want to make any change. It looks to me as if we had wasted about as much time on this as it is worth.”

On the 17th September the company replied, admitting the error mentioned and stating they would make a new proof. No *171acknowledgment of this letter was made by the defendant, but defendant, shortly after the letter of the 12th, entered into contract with other parties for the engraving of the drafts. On September 21st a corrected design was sent to the defendant, which was not acknowledged. A further proof was sent on October 11th. In the latter part of October the salesman called upon the president, who said he had not received the last proofs. New proofs were transmitted to him on November 14th. The salesman testifies to statements of the president as to finally being satisfied with the second proof, with the exception of the scroll work around the title. This was remedied in the last proof submitted. The president, however, denies that he had the interview with the salesman at which this is said to have taken place, and that he at any time expressed satisfaction with the design submitted.

The rights and obligations of the parties are clearly defined by law. In *Duplex Safety Boiler Company*v. *Garden et al.,*101 N. Y, 387; 1 N. Y. State Rep., 51, it was held that where the contract is for work that is to be done or services to be rendered to the satisfaction of the employer, compensation does not depend upon the sole arbitrary decision of the latter, but upon whether the contract has been performed according to its terms, for “ that „ which the law will say a contracting party ought in reason to be satisfied with that the law will say he is satisfied with.” But *“*another rule has prevailed where the object of a contract was to gratify taste, serve personal convenience or satisfy individual preference. In either of these cases the person for whom the article is made or the work done may properly determine for himself, if the other party so agrees, whether it shall be accepted. One who makes a suit of clothes, *Brown*v. *Foster,*113 Mass., 136, or undertakes to fill a particular place as agent, *Tyler*v. *Ames,*6 Lans., 280, mould a bust, *Zaleski*v. *Clark,*44 Conn., 218, or paint a portrait, *Gibson*v. *Cranage,*39 Mich., 49; *Hoffman*v. *Gallaher,*6 Daly, 42, may not unreasonably be expected to be bound by the opinion of his employer honestly entertained.”

In *Hoffman*v. *Gallaher,*cited with approval above, where a portrait was to be painted which was to be submitted to the judgment of the sitter’s friends to decide if it was a good likeness or not, it was held that such decision was a condition precedent to payment.

In *Moore*v. *Goodwin,*43 Hun, 534, 7 N. Y. State Rep., 154; where the contract was to make a crayon portrait which was to be satisfactory to the person ordering it, it was held that neither the other party nor the jury could decide that he ought to be satisfied with it. The court said: “ We understand that when a person contracts to perform work to the satisfaction of the other party to the contract, and the subject involved is a matter of taste, like the painting of a portrait, the rule is that the person for whom the work is to be done is the sole judge, and if he refuses to accept the work on the ground that it is not satisfactory, his decision cannot be questioned, one of the terms of the contract being that the work shall be satisfactory to him; if it is not so, the contract is not per*172formed and lie is not liable. He did not agree to accept what might be satisfactory to others unless it was satisfactory to him, and the contract does not give to the opposite party, or to a jury, nor to any other person, the right to decide whether he is or ought to be satisfied.”

The contract now under consideration is one for work involving a matter of taste and personal preference in the design to be engraved for the drafts for the bank, and the contractor agreed to furnish a design which should be satisfactory to the president. Under the authorities, no recovery can be had unless it be shown that the president was satisfied with the design. The appellant does not quarrel with the rule, but claims that the president did not honestly entertain the opinion that the design was unsatisfactory, because he allowed the plaintiff to go on and make alterations (as I understand the charge), with the preconceived intention not to approve the design, because he had given the order to other parties; and also contends that the plaintiff should recover because the president had expressed his satisfaction with the proof presented, and had required certain alterations to be made, on complying with which instructions he was bound to accept,, and the defendants became liable to pay.

I think that the rights of the parties were fixed by the transaction as to the third proof submitted on September 8th. That proof was rejected in the letter of September 12th, set out in full above. The rejection held out no encouragement to the Bank Hote Company to continue its efforts. Ho further suggestions for alterations were made. It was a definite rejection of the proof, and if the company chose to go on after that and make further efforts it was at its own risk. The defendant, after such rejections, gave the order to other parties, and it cannot be said that he, in bad faith, permitted plaintiff’s assignor thereafter to go on with the work. It is claimed that the defendant, in a conversation with the salesman, expressed himself as satisfied with one of the proofs, except in one particular, the taking off the scroll, and that having-directed this to be done and thus substituted his judgment for that of the engraver, he cannot be held to say that he was not satisfied, or that the company has failed to perform the contract on its part.

As to the facts the president of the defendant denies that he had any conversation or interview with the salesman after the order was first given, and denies that at any time satisfaction was expressed with any design. The letters of the parties are the best evidence. They show the improbability of the testimony of the salesman, because all the three proofs submitted up to September 8th were rejected for defects clearly pointed out.

Eeferring to them, it no way appears that the president at any time stated that upon the making of any particular alteration the design would be satisfactory. His last letter points out errors occurring before, then corrected and now recurring, and the letter of the company admits this error.

As to the claim that the defendant substituted its judgment for that of the company: It is enough to say that the plaintiff cannot *173complain that the defendant tried to aid it by suggestions towards furnishing a satisfactory design. The good will of the defendant in so doing cannot be turned as a weapon against it. There was no estoppel. The contractor was not induced to change his position. He could refuse to make the alterations suggested. If the contractor makes them he knows that the result is still subject to-approval. That this was the understanding in the case before us is plain, for the company submitted a fourth design, without cavil.

The fact that the defendant permitted the plaintiff to go on, after rejecting the third proof, and make alterations does not entitle plaintiff to recover as for a performance or a prevention of performance. The defendant did not promise to be satisfied with any alterations made after that time, and there is no evidence that the plaintiff has expressed any satisfaction with any proof submitted after the third one rejected on the 12th of September.

The judgment should be affirmed, with costs.

Bischoff and Pryor, JJ., concur.