The Providence news. (Providence [R.I.]) 1891-1906, 1898-11-17
Defendant Contended That Justice Erred In
Instructions TO Jury.
SUSTAINED BY APPELLATE COURT.
Decision Handed Down TODAY Which Holds That
Instructions We're Erroneous and That the De-
fendant Is Entitled 10 Another Trial.

A very interesting decision has been
handed down by the Appellate Court
in the case of Harper Pennington VS..
Samuel S. Rowland. The controversy
was over the painting of a wife's por-
traits in aristocratic Washington, and
the court decides that there must be
a new trial, as the jury that tried the
case in Newport were given wrong in
struction to the effect that the mere
retention of the pictures, under the cir
cumstances OF the case proved the
owner was liable. The plaintiff is .
Newport artist.
The plaintiff was employed to paint
a pastel portrait for the defendants
wife for $500 under contract by COR
respondence, which only provided for
the price. The plaintiff went to the
defendants hduse, in Washington, ID.
c., and began his work. The defendant
testified that he 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
lie also ttStlutu tndl the
plaintiff undertook the commission with
the understanding that he would paint
a satisfactory portrait.
The plaintiff denied this, and claimed
that upon the completion of his work
Mrs. Howland said 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 second portrait and went
away, leaving his implements, as he
says, to be sent to him, or, as the de-
fendant says, because the portrait was
not finished and because he was to re-
turn TO complete it.
'rhe defendant claimed he received u
letter from the plaintiff stating that
the pictures should be framed 10 keep
the pastel from brushing off, and that
he would give instructions to a man.
whom he usually employed, to do II.
The frames came. the pictures were put
into them and after some correspond
ence the defendant paid for them, and
the pictures are still in his possession.
The plaintiffs claim was that he
painted one portrait at an agreed price
and then another upon request, for
which he charged the same price, and
that both were not only without con-
ditions, but were said to be satisfac-
tory. The defendant claims the first
picture was not satisfactory, and on his
| expressing dissatisfaction with the
| same the plaintiff started another.
which he did not finish, and that the
| pictures were framed simply to preserve
| them until the last one should be fin
| ished. The defendant asked the court
| to instruct the jury that he had the
right to reject the first portrait IL he
| was not satisfied with ii.
The judge instructed the Jury that
| satisfactory" means reasonably satis-
| factory, but i'm response to another re-
quest he also instructed the jury that
! ''an artist. If he agreed TO paint a. pic
ture to one satisfaction. has no cause
| of action for the price unless the buyer
| is satisfied. however good the picture
| is" adding: But unless the man re-
| turns the picture he is conclusively held
to be satisfied" Judge Stiness. who
writes the opinion OF the Appellate
| Court says: "This last instruction
without the added sentence states the
| law correctly, according to the current
| of authority. and I'm giving the preced-
| ing instruction that a portrait must be
| reasonably satisfactory, the judge
| doubtless had i'm mind another class OK
cases to which that limitation may APP
| ply.
Continuing the opinion says: when
| the subject of the contract is one which
| involves personal taste or feeling, an
| agreement that IL shall be satisfactory
| 10 the buyer necessarily makes him the
| sole Judge whether IL answers that con-
dition He cannot be required TO take
| il because other people might be sats-
| fed with it. for that Is not what he
agreed to do. Personal tastes differ
| widely. and IL one has 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 OBJ
| jecting to Il. But that would not be
| the best OF the contract. nor should
/ Jury be allowed to say i'm such case
/ that a defendant must pay because by
| the preponderance OF evidence he ought
to have been satisfied with the work.
or. i'm other words. that II was reason
| able satisfactory" After citing n num-
ber of cases this instruction Is held to-
be erroneous.
In regard to the instruction as 10 the
failure OF the defendant 70 return the
| pictures conclusivelv proved the ac-
ceptance OF the same. Judge Stiness
saws the instruction taken generally
would be quite correct upon the ground
that one cannot retain the property ot
another and still refuse To pay for IL.
but the instruction as given ignores the
defence set up in this case. which "
| that the first picture was not accepted
| and the second not completed. The
| furry gave the plaintiff a verdict Tor
siiso. tho price set upon the two nic-
| lures. with interest. w. y. Shenield,
| Jr.. was the defendants attorney.