plaintiff and De Andreau refused. The plaintiff, as a witness in his own behalf, gave evidence tending to show that, after the arbitrators failed to agree, he requested the defendant to appoint another arbitrator, and that he asked Magnus to agree with De Andreau in appointing an umpire, and they did not accede to his requests.

Under the arbitration clause it was the duty of each party to act in good faith to accomplish the appraisement in the way provided in the policy, and if either party acted in bad faith, so as to defeat the real object of the clause, it absolved the other party from compliance therewith; and if either party refused to go on with the arbitration, or to complete it, or to procure the appointment of an umpire, so that there could be an agreement upon an appraisal, the other party was absolved. A claimant under such a policy cannot be tied up forever, without his fault and against his will, by an ineffectual arbitration. The evidence tended to show that the defendant failed and refused to go on with that arbitration. In the mean time, partly under the orders of the city authorities, the offensive debris and broken and injured articles about the plaintiff's premises had, to a great extent, been removed, so that an appraisal had become to a large extent impracticable. There was some evidence tending to show, and from which a jury might have inferred, that the defendant was not acting in good faith to procure a speedy appraisal, and was interposing this clause in the policy for the purpose of forcing a compromise from the plaintiff. Upon all the evidence it was a question of fact for the jury to determine whether there was any breach of this clause in the policy on the part of the plaintiff, and the case should thus have been submitted to them.

After its refusal or neglect to go on with the first arbitration which had been agreed upon, on the tenth day of August thereafter, the defendant served upon the plaintiff another written request to arbitrate, and offered to select a person to appraise the damages on its part. To this offer plaintiff refused to accede, and there was evidence in the conduct of the defendant, in reference to the arbitration first agreed upon, and in the removal of the property damaged, tending to show that the refusal was justifiable. The defendant in its answer did not set up as a bar to the action the pending arbitration, or any conduct of the plaintiff in reference thereto, but simply alleged that the plaintiff, upon request, refused to enter into an arbitration as provided in the policy. This allegation was untrue. The plaintiff had entered into an arbitration, and was not bound to enter into a new one while that was pending, and, if that one failed from the fault of the defendant, he had discharged his whole duty under the arbitration clause, and was not bound to enter into a new arbitration agreement. The plaintiff having once consented to arbitrate, if the arbitration failed and came to an end from the fault of the defendant, the arbitration clause could not stand in the way of this action.

The order should be affirmed, and judgment absolute entered against the defendant, with costs.

(All concur.)

NOTE.

It is said in Gauche v. London & Lancashire Ins. Co., 10 Fed. Rep. 347, that the conditions in a policy of insurance requiring preliminary proofs, and a reference to arbitration in case of difference, are conditions precedent to suit upon the policy. But it was held by the supreme court of Iowa in Gere v. Council Bluffs Fire Ins. Co., 23 N. W. Rep. 137, that where a fire insurance policy provides that in case differences shall arise as to the amount of loss the subject shall be submitted to arbitration on the request of either party, and the award made in writing shall be binding as to the amount of loss or damage, it does not render an arbitration a condition precedent to the right of the insured to sue to recover a loss, but is nothing more than a mode of providing what should be deemed conclusive evidence of one of the facts.

The following is taken from the note to case of Chicago, M. & St. P. Ry. Co. v. Stewart, 19 Fed. Rep. 5: It is not infrequently provided in policies of insurance that any dispute arising under the policy shall be referred to arbitrators. Such agreements to arbitrate, it has been decided, do not oust the courts of their jurisdiction. Allegre v. Maryland Ins. Co., 6 Har. & J. 408; Robinson v. George's Ins. Co., 17 Me. 131; Kill v. Hollister, 1 Wils. 129; Amesbury v. Bowditch Ins. Co., 6 Gray, 596. So, where the underwriters refused to pay the loss of the assured, his right of action was held immediately to accrue, although there was a clause in the policy that payment was not to be made until 90 days after proof and adjustment of the loss, and that, in case of dispute, the same might be settled by arbitrators. Allegre v. Maryland Ins. Co., 6 Har. & J. 408. The action may be sustained without any offer to refer, Robinson v. George's Ins. Co., 17 Me. 131; although if there be a reference depending, or made and determined, it might have been a bar. Kill v. Hollister, 1 Wils. 129. But in Avery v. Scott, 8 Welsb., H. & G. 497, it was decided that, although an agreement which ousts the courts of their jurisdiction is illegal and void, yet an agreement in a policy of insurance as to arbitration was not of that description, since it did not deprive the plaintiff of his right to sue, but only rendered it a condition precedent that the amount to be recovered should be first ascertained, either by the committee or arbitrators. In Goldstone v. Osborn, 2 Car. & P. 550, it was held that the insured might maintain an action on such a policy, notwithstanding the condition, when it appeared that the insurers denied the general right of the insured to recover, and did not merely question the amount of damage. So he may, if the insurance company waive the right to a submission to arbitration, as by taking possession and repairing the thing insured. Cobb v. New England M. Ins. Co., 6 Gray, 193.

(101 N. Y. 644)

DOUGHTY and others v. MANHATTAN BRASS Co.1

Filed February 9, 1886.

STATUTE OF FRAUDS-MEMORANDUM-UNSIGNED POSTSCRIPT TO LETTER. The contract in question was made up of letters, and the only reference to price was contained in a postscript unsigned. On this the plaintiff sent an order which was acknowledged as "booked. Held, that all the letters were so connected by their contents as together to constitute a valid contract, and avoid the statute of frauds.

S. B. Brownell, for appellant.

E. More, for respondents.

DANFORTH, J. The contract upon which the plaintiff relies is contained in letters written by one or the other party, and the only question upon this appeal is whether their true construction discloses an agreement valid under the statute of frauds. 2 Rev. St. tit. 2, p. 2, c. 7, 3, sub. 1. The appellant's contention is that "the contract relied upon is not contained in any note or memorandum subscribed by the defendants;" and, as I understand the argument, it rests mainly upon the assumption that the only reference to price is contained in a postscript to

1Affirming 31 Hun, 315, mem.

the defendants' letter of September 12, 1879, and that this postscript is not subscribed. The defendants were makers of brass hoops, and the plaintiffs, as manufacturers of cedar ware, required that article. ness relations had existed between them for several years, and on the twelfth of September, 1879, the defendants wrote concerning certain orders already received, giving some general information relating to the present and probable future price of brass, and duly subscribed the same. Below the signature were these words: "P. S. Will make price for November and December 17c. lb." It is plain that the signature was intended to authenticate the paper, and in such case it is immaterial upon what part it is placed, whether at the beginning, or the end, or in the middle. The postscript was an after-thought; but it was verified as effectually, for the purposes of correspondence, as if written in the body of the letter to which it was added, and into which, by reference, it may be deemed incorporated. In response to this letter, the plaintiffs, under date of September 15, 1879, gave a written order, signed by them, for "2 tons of 11-16 hoop brass, November 1st, 2 tons December 1st;" and, under date of September 17th, the defendants wrote: "Your order for November and December to hand and booked." In another written communication dated October 6, 1879, and sent to and received by the plaintiffs, the defendants said.. "We will not fail to ship 1,000 lbs. per week, or more, until your order is filled."

These writings were subscribed by the defendants.

If the letter of September 12th stood alone, as containing the contract, it would be necessary to hold that it was not subscribed within the intent of the statute, (James v. Patten, 6 N. Y. 9;) but all the letters above referred to are so connected by their contents as together to constitute a note or memorandum for the sale of four tons of hoop brass, at 17 cents per pound, to be delivered, one-half November 1st, and the other half December 1st. The proposal and final acceptance import a consent of both parties, and create an obligation on the part of the plaintiff to take and pay for the same as delivered.

It is said, however, by the learned counsel for the appellants, that the order of September 15th was indefinite, because it did not specify the required thickness of the hoop, nor a stipulated time of payment. It is apparent, however, that earlier orders had been given, and in part filled, and the one in question called for the same article, but at a different price. If otherwise, however, there was neither ambiguity in the contract, nor any difficulty in performing it according to its terms. No term of credit was bargained for, and, although the complaint alleges that by the agreement payment was to be made on the first of the month after the goods were received, that allegation was not proved, and the question presented was simply one of variance between the complaint and proof, which the trial court might properly disregard. We think the note or memorandum sufficient to express a contract. The verdict of the jury upon evidence sufficient for their consideration establishes the breach of that contract by the defendants, and damages incurred by

the plaintiff in consequence of it. We find no error, therefore, in the judgment appealed from, and think it should be affirmed.

(All concur.)

(101 N. Y. 387)

DUPLEX SAFETY BOILER Co. v. GARDEN.1

Filed February 9, 1886.

CONTRACT-Payment When PARTIES " ARE SATISFIED."

Plaintiff repaired and set up defendants' boilers, under a contract that he was to be paid when defendants "were satisfied that the boilers so changed were a success. Defendants claimed that they alone were to determine that question. Held error; that, as the work specified was completed, and defendants continued to use it without objection or complaint, the time for payment had come, and plaintiff had a right of action for the contract price if payment was refused.2

John A. Deady, for appellants.

H. C: Place, for respondent.

DANFORTH, J. The plaintiff sued to recover $700, the agreed price, as it alleged, for materials furnished and work done for the defendants, at their request, upon certain boilers belonging to them. The defense set up was that the work was done under a written contract for the alteration of the boilers, and to be paid for only when the defendants "were satisfied that the boilers, as changed, were a success." Upon the trial it appeared that the agreement between the parties was contained in letters, by the first of which the defendants said to plaintiff:

"You may alter our boilers, changing all the old sections for your new pattern, changing our fire front, raising both boilers enough to give ample fire space; you doing all disconnecting and connecting, also all necessary mason work, and turning boilers over to us ready to steam up. Work to be done by tenth of May next. For above changes we are to pay you seven hundred dollars as soon as we are satified that the boilers, as changed, are a success, and will not leak under a pressure of 100 pounds of steam."

The plaintiff answered, "accepting the proposition," and as the evidence tended to show, and as the jury has found, completed the required work in all particulars by the tenth of May 1881, at which time the defendants began and thereafter continued the use of the boilers.

The contention on the part of the appellant is that the plaintiff was entitled to. no compensation, unless the defendants "were satisfied that the boilers, as repaired, were a success, and that this question was for the defendants alone to determine;" thus making their obligation depend upon the mental condition of the defendants, which they alone could disclose. Performance must, of course, accord with the terms of the contract; but if the defendants are at liberty to determine for themselves when they are satisfied, there would be no obligation, and consequently no agreement which could be enforced. It cannot be presumed that the plaintiff entered upon its work with this understanding, nor that the defendants supposed they were to be the sole judge in their own cause. On

1 Affirming 32 Hun, 68, mem.

See note at end of case.

the contrary, not only does the law presume that for services rendered remuneration shall be paid, but here the parties have so agreed. The amount and manner of compensation are fixed; time of payment is alone uncertain. The boilers were changed. Were they, as changed, satisfactory to the defendants? In Folliard v. Wallace, 2 Johns. 395, W. covenanted that, in case the title to a lot of land conveyed to him by F. should prove good and sufficient in law against all other claims, he would pay to F. $150, three months after he should be "well satisfied" that the title was undisputed. Upon suit brought the defendant set up that he was "not satisfied," and the plea was held bad, the court saying: "A simple allegation of dissatisfaction, without some good reason assigned for it, might be a mere pretext, and cannot be regarded." This decision was followed in City of Brooklyn v. Brooklyn City R. R., 47 N. Y. 475, and Miesell v. Insurance Co., 76 N. Y. 115.

In the case before us, the work required to be done was specified, and was completed. The defendant made it available, and continued to use the boilers without objection or complaint. If there was full performance on the plaintiff's part, nothing more could be required, and the time for payment had arrived; for, according to the doctrine of the above

"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."

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 agree-whether it shall be accepted. Such instances are cited by the appellant. 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, 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. A different case is before us, and in regard to it no error has been shown.

The judgment appealed from should be affirmed. (All concur.)

NOTE.

6

It is held in the recent case of Singerly v. Thayer, (Pa.) 2 Atl. Rep. 230, that a contract to furnish an article that shall be satisfactory to the purchaser is not complied with by proof that the article furnished is made in a workman-like manner, and performs its intended purpose in a manner which ought to be satisfactory to the purchaser. In this case the contract was to erect an elevator “satisfactory in every respect," and the court held the meaning of the language used was that the elevator, when erected, should prove satisfactory to the person for whom it was erected. As a matter of fact the elevator did not prove satisfactory, and suit was brought on the contract for the price. The court say: "When the agreement is to make and furnish an article to the satisfaction of the person for whom it is to be made, numerous authorities declare it is not a compliance with the contract to prove that he ought to have been satisfied. It was so held in Gray v. Railroad Co., 11 Hun, 70, where the contract was for the purchase of a steam-boat; in Brown v. Foster, 113 Mass. 136, where the agreement was to make a suit of clothes; in Zaleski v. Clark, 44 Conn. 218, on a contract for a plaster bust of the deceased husband of the defendant; in Gibson v. Cranage, 39 Mich. 49, where a portrait was to be satisfactory to the defendant; and in Hoffman v. Gallaher, 6 Daly, 42, where a portrait of defendant was to be satisfactory to his friends.”