Hawkins v. Graham

• Decision Date: 11 May 1889
• Citation: 21 N.E. 312,149 Mass. 284
• Parties: HAWKINS v. GRAHAM.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

149 Mass. 284

21 N.E. 312

HAWKINS v. GRAHAM.

Supreme Judicial Court of Massachusetts, Suffolk.

May 11, 1889

COUNSEL

S. Lincoln, for plaintiff.

A Hemenway and F.L. Washburn, for defendant.

OPINION

HOLMES J.

The only question in this case is whether the written agreement between the parties left the right of the plaintiff to recover the price of the work and materials furnished by him (plaintiff) upon the actual satisfaction of the defendant. Such agreements usually are construed, not as making the defendant's declaration of dissatisfaction conclusive, in which case it would be difficult to say that they amounted to contracts, (Hunt v. Livermore, 5 Pick. 395, 397,) but as requiring an honest expression. In view of modern modes of business it is not surprising that in some cases eager sellers or selling agents should be found taking that degree of risk with unwilling purchasers, especially where taste is involved. Brown v. Foster, 113 Mass. 136; Gibson v. Cranage, 39 Mich. 49; Machine Co. v Smith, 50 Mich. 565, 15 N.W. 906; Zaleski v Clark, 44 Conn. 218; McClure v. Briggs, 58 Vt 82, 2 Atl.Rep. 583 ; Ventilator Co. v. Railroad Co., 66 Wis. 218, 28 N.W. 343; Seeley v. Welles, 120 Pa.St. 69, 13 Atl.Rep. 736; Singerly v. Thayer, 108 Pa.St. 291, 2 Atl.Rep. 230; Andrews v. Belfield, 2 C.B. (N.S.) 779. Still, when the consideration furnished is of such a nature that its value will be lost to the plaintiff either wholly or in great part unless paid for, a just hesitation must be felt, and clear language required, before deciding that payment is left to the will, or even to the idiosyncracies, of the interested party. In doubtful cases courts have been inclined to construe agreements of this class as agreements to do the thing in such a way as reasonably ought to satisfy the defendant. Sloan v. Hayden, 110 Mass. 141, 143; Braunstein v. Insurance Co., 1 Best & S. 782, 799; Dallman v. King, 4 Bing, N.C. 105. By the written proposition, which was accepted by the defendant, the plaintiff agrees, "in consideration of the sum of fifteen hundred and seventy-five dollars, to be paid me upon the satisfactory completion of the following system of heating *** in your new mills, *** to furnish and set up *** in complete and first-class working order" certain things. Then follow conditions, tests, and other undertakings. Then "it is further declared *** that in the event of my not being able to properly heat every portion of the buildings *** in accordance with the requirements as above set forth," upon 10-days' notice "that the buildings are not being properly and sufficiently heated, and I cannot so heat it in ten days thereafter," the plaintiff will remove the machines at his own expense. "In this event no charges of any kind will be made by me on account of any of the aforesaid work, it being distinctly understood that the providing of the entire system is to...