Barrett v. Coal Company.

• Decision Date: 05 April 1902
• Citation: 51 W.Va. 416
• Parties: Barrett v. Coal Company.
• Court: West Virginia Supreme Court

51 W.Va. 416

Barrett

v.Coal Company.

Supreme Court of Appeals of West Virginia.

Submitted January 21, 1902,

Decided April 5, 1902.

Contract Brick Superintendent Inspector.

Where by a contract brick are to be made of certain kind and character "to the satisfaction of the general superintendant of said company or his authorized representative," the right of rejection by the superintendent is absolute, and his reasons cannot be investigated, if in good faith, that is not fraudulent, (pp. 417, 419).

Contract Quantum Meruit Recovery.

Where there is a contract for work, and it is only partially executed, and so no recovery can be had on a special count based on the contract, yet there may be recovery for the actual worth to the party of the work done upon a quantum meruit under the common count, if the failure to complete the work is without the fault of the plaintiff, (pp. 419, 420).

Appeal from Circuit Court, Raleigh County. Action by Leon Barrett against the Raleigh Coal & Coke Company. Judgment for plaintiff, and defendant appeals.

Reversed.

Joseph M. Broun, W. L. Ash by, and. John M. Ball, for appellant.

Brown, Jackson & Knight, A. P. Farley, and John Hatcher, for appellee.

Brannon, Judge:

Leon Barrett, in an action of assumpsit in the circuit court of Raleigh County against The Raleigh Coal and Coke Company, recovered a verdict and judgment for four hundred dollars and the company has brought the case to this Court. Barrett and the company made a written contract by which Barrett undertook to manufacture for the company five hundred thousand brick in a thorough ami workmanlike manner, of certain description, ready for the builder's use "and to the satisfaction of the general superintendent of said company or his authorized representative." Barrett claiming that the company had accepted sixty thousand brick and then refused to accept any more brick or to allow him to proceed in the execution of the contract, brought the action against the company to recover damages for breach of the contract.

The first error assigned is that the court overruled a demurrer to the declaration, consisting of the common counts and a count based on the contract. It is claimed that the special count is bad because it says and counts on both an oral and written contract. If so, it does not state any difference in legal effect between the oral and the written contract. Judging from the count we would say that there was an oral, contract afterwards reduced to writing. I see no substantial objection to this. Besides, duplicity is no objection nowadays.

The general superintendent stopped the work and refused to accept any more brick. Upon the trial the defendant offered and was refused a. number of instructions. One of these instructions is to the effect that if the jury believed from the evidence that the brick manufactured by the plaintiff and offered for inspection under his contract were in good faith rejected by the general superintendent of the company, or his authorized representatives, as not being to his or their satisfaction, the action of said superintendent or his representatives is binding upon both parties to the contract, and the plaintiff is not entitled to any credit against the company for the brick so rejected. The defendant also asked another instruction, that under the contract the general superintendent or his authorized agents were made sole judges of the quality of the brick manufactured under the contract, and that the action of the superintendent or his representatives in accepting or rejecting said brick was conclusive and binding upon both parties, unless the superintendent or his representatives acted fraudulently. The cases of Kidwoll v. B. & O. R. B. Co, 11 Grat. 676, and B. & O R R Co. v. Folly Woods & Co., 14 Grat. 447, hold that where; a contract for a construction «of work provides that estimates of an engineer of the work shall be conclusive upon the parties, the contract is valid and the estimate of the engineer is conclusive in the absence of fraud or mistake. The contract in the present case does not in terms say that the action of the superintendent shall be conclusive, but the decisions just cited are upon the same line, and bear on the present case. Indeed, I do not perceive that under the law the present contract has any less force than if it expressly provided that the action of the superintendent in rejecting the brick should be conclusive. The decisions upon just such a contract as this are very numerous. In Osborne & Co. v. Francis, 38 W. Va. 312, it is held that where a party bought a binder upon condition that if it did not work to his satisfaction, he might return it, his right to reject was absolute, and his reasons for rejection could not be investigated. In Benjamin on Sales (Bennett's Edition) 607, we find the law stated upon many authorities that "it is clear that a condition that the article to be made shall be satisfactory to the buyer, is a valid condition, and if it is not so, and the article is not accepted, the vendor has no remedy. It is immaterial whether the article docs or does not conform to the order; the other is not bound to accept, or to be satisfied." Why is this the law? Because so the bond is writ. Though it takes the pound of flesh, so the bond is writ. It is the contract. The part}'' has proposed to make his own will conclusive, and the other party has accepted that as the contract, and a court cannot set itself up, nor can a jury, as a judge to say whether the party who is given this power of action by the contract has acted reasonably or unreasonably. In Seeley v. Welles, 120 Pa. St. 69, it is held in such case that defendants "objections may have been ill founded, or unreasonable in the opinion of others, yet if they were made in good faith he had the right to reject the machine." In Brown v. Foster, 113 Mass. 136, the plaintiff agreed to make a satisfactory suit of clothes, and the defendant returned the suit as unsatisfactory. It was held that an action for the price could not be maintained. The plaintiff offered to amend the suit, but the defendant refu...