The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1893-12-21

contract, Notwithstanding the fact
that the plaintiff had done all things
on his part. TIE plaintiff should be
allowed to amend his complaint so
as to show that defendants alleged
breach does not come within this
exception. Otherwise, the statement
OF the breach IS sufficient The &C
ton IS sssumpsit for breach of
the entire contract. Not being
an action for tortuous prevent
ing of plaintiff performance,
no allegation to that effect is
necessary. The defendants promise
is to pay mot to employ, and the
plaintiffs performance is a condition
precedent to the payment. The de-
fendant's breach consists in it's re-
fusal to pay, not In its refusal to
employ, for it did not promise to
employ. 1t may, at pleasure, dis
charge the plaintiff, but it cannot
refuse to pay him il he performs his
part, or if be is ready and willing TO
do so, for the defendant cannot set
up. as defense, non-performance Of
which itself is the cause. Aspdin V.
Austin, AID. & Ell, GIL; Dunn V.
Sayles, Ib, 6S5. The allegation ''tbat
the defendant refuses to allow him
the plaintiff so to do perform his
part or to pay him therefor" is
sufficient allegation of the breach
The plaintiff agreed to conduct the
business of soapmaking ''to the salts
faction" Of the Company, and the
Company agreed to pay him for the
work provided be performed it "to the
| satisfaction" of the Company. It is
argued that these words made the
Company sole judge of the satisfac-
toriness of the work, and that the
mere fact that it dismissed the plain
tiff is conclusive proof that in the
judgment of the Company, he did
| not perform the work satisfactorily
in other words that the Company
| might at pleasure discharge and re-
| jury ought not to be allowed to in
quire into either the existence or the
reasonableness of the defendants
dissatisfaction.
This argument is unsound 1t is
based on the erroneous assumptions,
| that person would not discharge an
employee unless dissatisfied with his
work, and that, il an employer says
he is dissatisfied with the work, he
must be conclusively presumed to
| speak the truth. It is true, that In
contracts to be performed to the
! satisfaction OF another, that other
is sole judge of the satisfac-
| toriness of the work-Where the
other words or the subject matter
of the contract do not show differ.
| ent intention. But the fact that one
Is sole judge does not authorize him
| to act whimsically or in bad ia tn.
| The very term Judge" implies fair
ness of action and the exercise of
| ones judgment, not mere within or
will. The jury In such cases may in
| quire into the existence, but not the
reasonableness, of the dissatisfaction,
| for person may be satisfied with
that which is poorly done and dis
! satisfied with that which is well
done. De gusti6us non est disputdndum
| In Winship v. Portland L. B. b. 81 a
Ass, rs Me-, 81, by the terms of the
contract, the employee, a base ball
manager, might be discharged before
! the expiration of the term If he
should become unfit, for any cause
whatever, in the judgment of the en-
ployers, to fulfill his duties in salts
factory manner. The Court held that
the employers were sole judges of
the sufficiency of the reason for dis.
charge, but that they must act in the
utmost good faith and not give false
reason,--as falsely pretend that the
employee was incompetent or ineffici-
eDt when their real reason was his
refusal to submit to a reduction of
his compensation. To the same effect
are: Silsby M. Co. v. Chico, "a Fed.
| II 500 Contract for fire engine to
be satisfactory to a committee) ;
Campbell p. p. Co. V. Thorp, SO Fed.
r, Ala printing presses), decided by
Jackson and Brown, now justices of
the United States Supreme Court
Daggett v. Johnson, 40 Vt, 345
milk pans); Mcclure Bros. v. Briggs,
IS Vt, 80 (organ); Singerly V. Thayer,
10S Pa. st. 291 (elevator); Seeley v.
Welles, 120 Pa. st, SO (reaper); An
drews v. Belfeld, 2 c. b. n. s., 779
| (carriage); Stadhard V. Lee, B. & S.,
364 (sewers). The following cases
Brown v. Foster, lib Mass. 136
(clothes); Zaleski v. Clark, Al Conn,
21S Dust; McCarren v. McNulty, z
4 OTdy, Loo kOOOh CdeeI, hdIb v. 11dIl.
% barb, COG (support); Bucksport
&. B.R.Co. VS.. Brewer, 67 Me-, 395 DO
cation of railway; Gibson v. Cranage,
80 Mich, 40 (portrait); and Bush v.
Kohl, 80 Pac. r. (Col), 921 (service) !;
are sometimes cited, some of them by
defendants counsel in this case, in
support of the position that contracts
of this nature are optional with the
party who is to be satisfied. But not
one of these cases goes so far. They
merely show that the party who is to
be satisfied is sole judge, and that
the reasonableness of the dissatisfac
tion cannot be inquired into. They
do not hold that the existence of the
| dissatisfaction cannot be inquired
into. In each of these cases the party
was shown to be In fact dissatisfied.
There are few cases in which con-
tracts terminable by party "if dis
satisfied" have been held or said to
be, terminable at will, but these are
either cases in which the word "dis-
Satisfied" was used generally, not of
the work or the pay or anything in
particular, and was coupled with
other words of option, such as
"liked" provost v. HARDWOOD, 20 VT,
219), or "wish" (Rossiter V. Cooper,
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