"The trial upon which the defendant took the evaporator was to be had for the purpose of ascertaining whether the defendant liked it or not, and not for the purpose of ascertaining whether it was equal to the plaintiff's recommendations of it or not. The trial was to be had solely with reference to the defendant's wishes in respect to the machine for such uses as he might find he could make of it and not with any reference to any usefulness of it for other persons. To this trial the defendant was bound to bring honesty of purpose; anything short of that would not determine his wishes, fairly, but only his willful caprice or his dishonorable design."

In McKenzie v. Minis, 132 Ga. 323, 63 S. E. 900, 23 L. R. A. (N. S.), 1003, 16 Ann. Cas. 723, the court stated the rule to be:

"The promisor whose satisfaction is thus made the test must act honestly and in good faith. His dissatisfaction must be real, not merely pretended. Thus, if a suit of clothes were agreed to be made to the satisfaction of the purchaser at a fixed price, if they were in fact satisfactory to him, he could not feign dissatisfaction in order to get out of the contract merely because another similar suit was offered to him at a less price. This would not be dissatisfaction, it would be fraud."

It has been generally held that "to be dissatisfied," is a fact, and must be a verity and not a pretext. It is not, "I will not accept it,-will not have it," but it is, "It is not satisfactory," or "I am really and honestly dissatisfied with it." Exhaust Ventilator Co. v. C., M. & St. P. Ry., 66 Wis. 226, 28 N. W. 343, 57 Am. Rep. 257; Pierce v. Cooley, 56 Mich. 552, 26 N. W. 310; Southern v. Cunningham, 11 Rich. L. 533; Hallidie v. Sutter St. Ry. Co., 63 Cal. 575; Dubinsky v. Wells Bros. Co., 218 Mass. 232, 105 N. E. 1004, N. Y.; Hawken v. Daly, 85 Conn. 16, 81 Atl. 1053; Schwartz v. Kohn, 129 N. Y. S. 464, (Sup.

Ct.); Morgan v. Gamble, 230 Pa. 165, 79 Atl. 410 (Pa.); Tobin v. Kells, 207 Mass. 304, 93 N. E. 596.

The case at bar does not come within any well defined exception to the general rule thus announced. Indeed, it has been held by this court that even in a case where the question was to be submitted to a third party, his conclusion and determination is binding only when made in good faith.

In Empson Packing Co. v. Clawson, 43 Colo. 188, 95 Pac. 546, we said:

"In other words, the rule of law is, that where parties to a contract designate a party who is authorized to determine questions relating to its execution, and stipulate that his determination shall be final and conclusive, both parties are conclusively bound by his determination of those matters which he is authorized to determine, except in case of fraud, or such gross mistake upon his part as would necessarily imply bad faith, or a failure to exercise an honest judgment."

The judgment is affirmed.

WHITE, J., and GARRIGUES, J., concur.

Affirmed.

1.

[No. 8647.]

PAYNE V. WILLIAMS.

PLEADINGS-General Denial-Effect. Action to recover moneys alleged to have been paid by plaintiff for the use of defendant, upon her promise of re-imbursement. Under the general denial defendant may show that the advance was made as a gift, without any promise or expectation of repayment. (90.)

2. EVIDENCE-Burden of Proof. In the same case, held, that the burden was upon plaintiff to prove the character of the undertaking upon which he relied. The rule that one alleging a gift must establish all facts essential to the validity of a gift, held inapplicable. (90, 91.)

Error to Denver District Court. Hon. JOHN W. SHEAFOR, Judge.

ror.

Messrs. ZIMMERHACKEL & AVERY, for plaintiff in er

Mr. FRAZER ARNOLD, and Mr. JOHN A. EWING, for defendant in error.

Mr. JUSTICE SCOTT delivered the opinion of the court.

This is an action for debt upon an alleged verbal contract for moneys advanced by the plaintiff in error, plaintiff below, to defendant in error, defendant below, used in partial payment for a residence property in the city of Denver, now owned by defendant.

The substance of the complaint is that the plaintiff on the 21st day of June, 1910, entered into a contract to purchase from the owner, the premises involved, for the sum of $3,350.00, in payments as follows: $600.00 upon the execution of the contract; $500.00 on or before September 21st, 1910; $750.00 on or before July 21st, 1911, and the remainder to be paid by the assumption of a mortgage in the sum of $1,500.00. That the plaintiff paid the sum of $600.00 at the time of the execution of the contract, and the sum of $500.00 on the 21st day of September, 1910, as agreed. That thereafter and on the 9th day of November, 1910, the plaintiff and defendant entered into a contract whereby the plaintiff agreed to and did transfer his interests in said premises, to the defendant, and whereby the defendant agreed, in consideration thereof, to pay the plaintiff a sum equal to the amount theretofore paid by him on account of said purchase price, and further agreed to pay the remainder of the purchase price of said premises as provided in his said original contract with the owner, and that the defendant further agreed that in the event that she should fail to so pay such balance, and the plaintiff there

by be compelled to pay the same, the defendant would repay to the plaintiff the sums which the plaintiff should so pay; and that defendant further agreed to repay to the plaintiff any sums which he might be compelled to pay as interest on the $1,500.00 mortgage debt.

That on May 5th, 1911, at the request of the defendant, and in order to prevent a forfeiture of the original contract, the plaintiff paid $450.00 on account of the purchase price of said property, and on the same day paid $45.00 as interest on the $1,500.00 due under the mortgage. That on August 5th, 1911, the said property, pursuant to the said contract of purchase, and the payments made thereunder, was conveyed to the defendant, who ever since has been and is now the owner thereof. That the defendant has not repaid to the plaintiff any of the sums so paid by him.

The prayer was for judgment for $1,659.70 and for a vendor's lien to secure the payment thereof.

The answer admits that the defendant is the owner of the property and pleads a general denial to every other allegation in the complaint. The cause was tried to court and jury and verdict and judgment rendered in favor of defendant.

The contention of the defendant was that the moneys advanced by the plaintiff, and all that he did in the premises, was as a gift to her, and that at no time was there any agreement upon her part or of any other person to repay to the plaintiff the sums of money so advanced, or any part of them.

The assignments of error are (1) that the court erred in permitting the plaintiff, under her general denial, to show that the payments made by the plaintiff were by way of gift; (2) that the court erred in refusing an instruction to the jury to the effect that the burden was upon the defendant to establish by a preponderance of

the evidence that the moneys advanced by the plaintiff was a gift.

The undisputed facts are in substance, that at the time of the contract between plaintiff and the owner, the plaintiff, and for a long time thereafter, was a roomer at the residence of the defendant and her husband. The family consisted of the defendant, her husband, a daughter of marriageable age and another child. The plaintiff was very friendly with defendant and her husband, had proposed marriage to the daughter. This proposal was not accepted, but plaintiff appears to have continued his suit for the hand of the daughter in marriage. The Williams family were poor, without a home of their own, the husband earning $60.00 per month, and the daughter working as a stenographer, employed by the plaintiff at the time of the contract by plaintiff to purchase. The plaintiff proposed the purchase of a dwelling for use of defendant and her family. He in company with defendant and her husband inspected two properties, and afterward the one involved, which seemed to be satisfactory to all. The defendant and her family moved into this property, and the plaintiff moved with them, still retaining a room.

Prior to August 25th, 1910, the plaintiff executed what is termed an informal agreement, by which he purported to transfer his interest in the contract to the daughter.

The plaintiff was unable to meet the final payment of $750.00, and thereafter, by the apparent consent of all parties, the old contract between plaintiff and the owner was cancelled, and an agreement between the owner of the premises and the defendant entered into, whereby the defendant agreed to pay the sum of $850.00 in monthly payments of $25.00. The additional $100.00 being in consideration of a waiver of forfeiture of the old agreement. The defendant made such payments for sev