#### The Ball Electric Light Co., App’lt, *v.*The Sanderson Brothers Steel Co., Resp’t.

*(Supreme Court, General Term, Fourth Department,*

*Filed May 8, 1891.)*

Sale—Goods to be satisfactory to vendee—Acceptance.

An electric light plant was put in defendant’s mill to light the same and the office, but not to be paid for until it had worked successfully and to-*641defendant’s satisfaction for ninety days. In reply to a demand for a settlement, defendant wrote a letter claiming that the time was not up, and saying that the office lights were a failure, but that if the arc lights worked as well for the next thirty days as they had done before, it would waive the trouble of lighting the office and settle the account on certain concessions being made, which were not agreed to. Defendant continued to use the plant for more than the thirty days mentioned, and then refused to have it put in order and refused to keep it. There was evidence to show that the arc lights continued to work well for the thirty days. *Held,*that if such was the case, the continuance of the use by defendant would amount to an acceptance; that it was a question for the jury whether defendant in the final rejection acted in good faith, and that a nonsuit was improper.

Appeal from a judgment entered in Onondaga county on the 15th March, 1889, upon a nonsuit ordered at the Onondaga circuit, March, 1889.

Action to recover the price of an electric light plant put in the defendant’s works by the plaintiff. In defense, the defendant alleged that the plant failed to operate successfully for ninety-days, and to light its works to its satisfaction, which were conditions precedent to plaintiff’s right to receive payment.

*Charles E. Ide,*for app’lt; *E. Nottingham,*for resp’t.

Merwin, J.

The main question upon this appeal is whether the case should have been submitted to the jury. There is no particular dispute as to the form of the contract between the parties. On the 2d June, 1887, the defendant wrote the plaintiff offering to “ install a thirty-light apparatus, you furnishing fifteen horse power at the pulley of the dynamo, for the sum of $1,985, or, we will install a twenty-five light apparatus for the sum of $1,725; with either of these we will also install the necessary few incandescent lights required for your office without further charge, the entire installation being complete in every particular. Payment will not be required until after sixty days of successful operation.”

On the 3d June, 1887, the defendant in reply wrote the plaintiff that in addition to the terms offered it should require “ that the lighting should be entirely to our satisfaction in every particular before payment is made, and that payment shall not be required until after ninety days of successful operation, also that in case the result should not be satisfactory to us that the whole plant shall be taken out free of charge or cost whatever to ourselves.” The plaintiff modified its offer in accordance with the requirement of the defendant, and on the 16th June, 1887, the defendant wrote the plaintiff that the terms and conditions as amended were satisfactory, thus completing the contract. In this last letter, the defendant suggests that the plaintiff’s representative should come up and again look over the ground and see exactly what is wanted, “ and as we only stipulate that the lighting shall be satisfactory, we would leave the decision as to what lights and what kind of a machine are necessary entirely to him, so that in case of any failure the fault cannot possibly rest with us.” Thereupon the plaintiff proceeded to put in the plant. While it was being the defendant suggests that it will be to have some *642double lamps. This, the plaintiff advises against, but says that if the defendant prefers to have them, it will furnish them at a certain price extra. The defendant on the 1st July replies that it considers it will be absolutely necessary to have some, but before deciding will wait to see how the single lamps work. On the 28th July the defendant writes “that the electric light seems to be working well so far with the exception of the incandescent lights in the offices. But before we can accept it we shall have to have several double lights put in in place of the single lights as we have already written you, and then see how those work. We would like seventeen of these double lights which your man could put up when he comes next time. We shall be réady for him in about three weeks.” To this the plaintiff replied on the 29th July that the request would be complied with, and asking “ two or three days notice when you will require our man, who will make all the lights operate to your satisfaction.” The double lights were put in about the 22d August. On the 81st August the defendant notifies plaintiff of some trouble with sparks on the field magnet, and the plaintiff sends a man to remedy it. On the 11th October the plaintiff asks for payment, the account having been previously sent, and again on the 17th October it calls defendant’s attention to the account, and says that unless they hear from them by the 20th inst they will draw at sight for the amount. On the 19th the defendant writes that “ it is not three months since the lighting was completed, and again, it is not satisfactory, nor is the amount you demand correct, as we have already told you. The arc lights burn fairly well in the mill, but the office lights are a total failure." They refer specifically to some items of the account and say “we enclose statement showing correct amount we shall owe you.”

The letter closes as follows: “ If the arc lights work in the mill for the next thirty days as well as they have done, we will waive the trouble of incandescent lighting in the offices, as we have no confidence in the plan anyway, providing you make the requisite concession for the estimated cost of putting in the incandescent lights, and will then settle the account for the balance.” The plaintiff on the 20th October replied, waiving some of the items objected to in the account and sending a corrected statement, and stating in reference to the incandescent lamps that they made no charge for them in the original contract and did not see why a rebate should be made, and asking, if this settlement was satisfactory, for a remittance by the 1st of November. On the 8th November, the defendant replies, claiming that the incandscent lamps were not to go in without charge and were a failure, but saying nothing further about any rebate on their account, and asked what the cost would be of a certain other kind of lamps in their place. To this the plaintiff replied on the 11th November giving the information asked for. On the 21st November the defendant asked the plaintiff to send them by express a certain kind of screw and two pair brushes for their dynamo, saying nothing about the working of the plant or the incandescent lamps. On November 22d, the plaintiff again asked for pay and on the 29th *643telegraphed that unless they received a check the next day they should draw at sight. On the 30th November the defendant wrote plaintiff, acknowledging the receipt of the telegram and saying in substance that the light did not come up to their requisites, had been getting worse and worse for the past two months and they had decided not to spend any more money on it and should not use it after that date. No particular reference was made to the incandescent lamps. A few days after this, the agent of plaintiff called on defendant and as he testifies offered to put the tiring in perfect working order at any expense and the agent of the defendant replied that they didn’t want it put in order; they thought perhaps something in the mill, some gases or something, that the lamps wouldn’t work; that they didn’t want the machine at all, and declined to let him go on and put it in order. After that and on December 7th the defendant wrote the plaintiff that “ if you desire to spend more money in trying to make the lights satisfactory we shall not stand in your way, but we will not bind ourselves to accept it even then as we have been very much disappointed in the working of it” This action was commenced soon after.

On the 19th October, 1887, the defendant wrote that if the arc lights work in the mill for the next thirty days as well as they have done they would waive the trouble of incandescent lighting in the offices provided the plaintiff would make the requisite concession for the estimated cost of putting in the incandescent lights, and would then settle the account for the balance. There was evidence from which the jury would have had the right to say that the arc lights did for the next thirty days work as well as they had done, and that the matter of the concession referred to was arranged satisfactorily to defendant or waived. If so, the continuance of the use by defendant, after the expiration of the time for trial, would amount to an acceptance. *Golden Gate Con. Co.*v. Caplice, 55 Supr. Ct., 439; 18 N. Y. State Rep., 389; *Prairie Farmer Co.*v. Taylor, 69 Ill., 440; *Brown*v. Foster, 108 N. Y., 391; 13 N. Y. State Rep., 805. In this view the question of acceptance should have been submitted to the jury. *Corning*v. *Colt,*5 Wend., 253. The defendant used the plant until November 30, and then, upon being pressed for payment, absolutely rejected it and declined to allow the plaintiff to make any further efforts to satify the defendant. The statement of the account rendered by plaintiff on the 20th October does not seem to have been objected to. On the 21st November, and after the expiration of the thirty days, the defendant orders materials for the dynamo, which was part of the plant. In the final rejection defendant made no reference to the incandescent lamps.

Under the contract as originally made the defendant was the party to be satisfied. Some changes were afterward made at the request of the defendant. The plaintiff, as it may be inferred, was at considerable expense in putting -the plant in. The plaintiff was entitled to have the defendant,in the exercise of its option, act in good faith. It had no right to reject for mere caprice. *Singerly*v. *Thayer,*108 Penn., 291; *Daggett*v. *Johnson,*49 Vt., *644345. Whether in its final rejection the defendant acted in good faith was, under the circumstances of this case, a question of fact for the jury.

It follows that there should be a new trial.

Judgment reversed and new trial ordered, costs to abide the event.

Hardin, P. J., and Martin, J., concur.