Buckstaff v. Russell Co

• Decision Date: 05 February 1894
• Docket Number: No. 207,207
• Citation: 38 L.Ed. 292,14 S.Ct. 448,151 U.S. 626
• Parties: BUCKSTAFF et al. v. RUSSELL & CO
• Court: U.S. Supreme Court

151 U.S. 626

14 S.Ct. 448

38 L.Ed. 292

BUCKSTAFF et al.

v RUSSELL & CO.

No. 207.

February 5, 1894.

J. H. Ames, for plaintiffs in error.

T. M. Marquett, for defendant in error.

Mr. Justice HARLAN delivered the opinion of the court.

1. It is suggested that the amount in dispute is less than $5,000. This point is not well taken. The amount for which Russell & Co. sued in their original petition was $4,206.07, with interest from October 9, 1888. That amount was increased by the supplemental petition to $5,882.20. The plaintiffs in error, who were defendants below, denied their liability in any sum, and by way of counterclaim, in accordance with the practice in Nebraska, asked for judg- ment against Russell & Co. in the sum of $10,000. The verdict and judgment were in favor of the plaintiff, and for the sum of $4,450. That sum, and the amount sued for in the counterclaim, are in dispute upon this writ of error. This court, therefore, has jurisdiction.

2. By an agreement in writing, made June 22, 1888, between Russell & Co., a corporation, and Buckstaff and Utt, the former agreed to furnish and deliver to the latter on cars at Lincoln, Neb., three boilers, 60 inch by 14 feet; one automatic cut-off engine, 125 horse power; one automatic cut-off engine, 50 horse power; one Gordon Maxwell duplex pump; one Garfield injector; one heater; and any necessary fittings of sufficient size and dimension to properly run such plant; also, two smokestacks, 32-inch diameter, 60 feet long, made of No. 12 iron, with fancy tops, guy rods, and stays. For those articles Buckstaff and Utt agreed to pay $4,950, as follows: One-third cash when the machinery was 'steamed up ready to run; the balance in six and twelve months, with interest at the rate of 7 per cent. per annum from time of erection in Lincoln; providing that, with proper and careful management, said engines, boilers, and pumps are hereby guarantied to work, and that said engines do give the amount of horse power as herein specified, and to be as economical of fuel and as durable as a Corliss noncondensing engine.'

'It is also understood and agreed,' the contract proceeded, 'that said Buckstaff and Utt shall use fair and honorable means to satisfy themselves, before payments are due, that said engines, boilers, and pumps are working to their entire satisfaction, and, should they not be, then, in that event, the said Buckstaff and Utt are to notify said Russell & Co., and said Russell & Co. must as once comply with the terms of this contract within 60 days; and, in the event they do not, the said Buckstaff and Utt may declare this contract paid in full, or said Russell & Co. shall pay back to said Buckstaff and Utt all money paid to them, and said Russell & Co. shall pay said Buckstaff and Utt such damage as shall be declared fair by competent judges, and, after paying such damages, may remove said machinery without cost to said Buckstaff and Utt. It is hereby agreed that Russell & Co. shall ship said machinery not later than July 15, 1888.'

Attached to, and made part of, the contract, are certain proposals from Russell & Co. to Buckstaff and Utt. One of them is a proposal to furnish three eighty horse power boilers, fully described, and contains this stipulation: 'All boilers tested to 150 pounds hydraulic pressure; workmanship and material guarantied to be first class; plans for setting boilers to be furnished without expense to purchaser.' Another is a proposal to furnish one right-hand automatic cut-off engine, fully described, and contains this stipulation: 'We guaranty the above engine to be well made, of frist-class material, and in operation to work as economically as any similar engine in the market.' A third is a proposal for another right-hadn automatic cut-off engine, accompanied by a similar guaranty.

In the first count of the petition it was alleged that all the machinery covered by the contract was delivered by the plaintiff to the defendants in strict accordance with its terms; that the defendants were to pay for it the sum of $4,950, one-third in cash when the machinery was steamed up ready to run, one-third in six months, and the remaining one-third in twelve months, with interest at the rate of 7 per cent. per annum from the time of the erection of said machinery; that all of the machinery had been delivered, was set up, put in operation, and commenced running on the 9th day of October, 1888, at which time one-third of the $4,950 became due; that another one-third became due on the 9th day of April, 1889; that neither of those amounts, nor any part thereof, have been paid by the defendants; and that they have refused and neglected to pay the same or any part thereof, although often requested so to do. The second count was for piping and other machinery, of the value of $392.86, and the third for grate bars, of the value of $450, alleged to have been sold and delivered by Russell & Co. to the defendants. By a supplemental petition the plaintiff enlarged its claim so as to embrace the last installment of the $4,950 for which the contract stipulated.

At the trial below the defendants objected to the introduction of any evidence in support of the first count of the petition, on the ground that it did not state facts sufficient to constitute a cause of action. This objection was overruled, and to that ruling the defendants excepted.

In support of this exception it is said that if it had been alleged, or indeed proven, that the plaintiffs did not 'use fair and honorable means to satisfy themselves,' before payment was due, that the machinery was 'working to their entire satisfaction,' or that the refusal to accept was fraudulent, still no action could have been properly maintained for the sale and delivery of the property, because, at all events, there would have been no acceptance, and, in its absence, the contract would have remained executory. Consequently, it is argued, the only action maintainable, if any, would have been one to recover damages for fraudulently refusing to accept the machinery and articles furnished. The counsel for the defendants refer to numerous cases which, it is insisted, sustain the construction of the contract upon which this exception is founded. It may be well to refer to some of those cases.

In Mansfield Mach. Works v. Common Council of Lowell, 62 Mich. 546, 552, 29 N. W. 105, (which was a suit upon a contract with a village for the sale of a steam engine and attachments, and which contract provided that a named sum should be paid 'when engine and hose are accepted; balance in equal payments: First, on or before six months; second, on or before eighteen months,—with interest at six per cent. from date of acceptance,') it was held that the contract, fairly construed, did not provide for the payment for the engine and machinery until they were tried and accepted; that under its terms the property remained in the vendor until acceptance and after trial of it, the village never becoming the owner of it; and that the remedy of the plaintiff, if any, would be a suit for a breach of the contract and refusal to accept on the part of the defendant.

In Zaleski v. Clark, 44 Conn. 218, 223, which was a suit for the price agreed to be paid for a plaster bust of the deceased husband of the defendant, the agreement being that she was not bound to take it unless she was satisfied with it, the question was as to the liability of the defendant upon proof that the bust was not only a fine piece of work, and a correct copy of a photograph furnished by the defendant, but that it accurately portrayed the features of the deceased. The court said: 'In this case the plaintiff undertook to make a bust which should be satisfactory to the defendant. The case shows that she was not satisfied with it. The plaintiff has not yet, then, fulfilled his contract. It is not enough to say that she ought to be satisfied with it, and that her dissatisfaction is unreasonable. She, and not the court, is entitled to judge of that. The contract was not to make one that she ought to be satisfied with, but to make one that she would be satisfied with. Nor is it sufficient to say that the bust was the very best thing of the kind that possibly could be produced. Such an article might not be satisfactory to the defendant, while one of inferior workmanship might be entirely satisfactory. A contract to produce a bust perfect in every respect, and one with which the defendant ought to be satisfied, is one thing, and undertaking to make on with which she will be satisfied is quite another thing. The former can only be determined by experts, or those whose education and habits of life qualify them to judge of such matters. The latter can only be determined by the defendant herself. It may have been unwise in the plaintiff to make such a contract, but, having made it, he is bound to it.'

In Brown v. Foster, 113 Mass. 136, 138, which was an action to recover the price of a suit of clothes which it was agreed should be satisfactory to the purchaser, but with which he was not satisfied, and for which he refused to pay, the court said: 'If the plaintiff saw fit to do work upon articles for the defendant, and to furnish materials therefor, contracting that the articles, when manufactured, should be satisfactory to the defendant, he can recover only upon the contract as it was made; and, even if the articles furnished by him were such that the other party ought to have been satisfied with them, it was yet in the power of the other to reject them as unsatisfactory. It is not for any one else to decide whether a refusal to accept is or is not reasonable, when the contract permits the defendant to decide himself whether the articles furnished are to his satisfaction. Although the compensation of the plaintiff for valuable service and materials may thus be dependent upon the caprice of...