Silsby Mfg. Co. v. Town of Chico

• Decision Date: 07 September 1885
• Citation: 24 F. 893
• Court: United States Circuit Court, District of California
• Parties: SILSBY MANUF'G CO. v. TOWN OF CHICO.

24 F. 893

SILSBY MANUF'G CO. v. TOWN OF CHICO.

United States Circuit Court, D. California.

September 7, 1885

Wm. H H. Hart, Park Henshaw, and A. B. Colton, for plaintiff.

W. C Belcher, J. D. Sproul, and F. C. Lusk, for defendant.

SAWYER J.

The only question in the case upon which I have any difficulty arises out of the following provision of the contract:

'The Silsby Manufacturing Co. will send the above-described steam fire-engine to Chico, subject to the approval of the fire committee, and will warrant the workmanship, finish, and performance of the machine satisfactory to them, or remove the same without expense,' etc.

The authorities are abundant to the effect that upon a contract containing a provision that an article to be made and delivered shall be satisfactory to the purchaser, it must be satisfactory to him, or he is not required to take it. It is not enough that he ought to be satisfied with the article; he must be satisfied, or he is not bound to accept it. Such a contract may be unwise, but of its wisdom the party so contracting is to be his own judge, and if he deliberately enters into such an agreement he must abide by it. To this effect are McCarren v. McNulty, 7 Gray, 139; Broun v. Foster, 113 Mass. 136; Zaleski v. Clark, 44 Conn. 218; Gibson v. Cranage, 39 Mich. 49; Gray v. Central R. Co., 11 Hun, (N.Y.) 70; Hallidie v. Sutter St. R. Co., 63 Cal. 575; Heron v. Davis, 3 Bosw. 336; Wood Machine Co. v. Smith, 50 Mich. 570; S.C. 15 N.,.Rep. 906; Hoffman v. Gallaher, 6 Daly, 42.

At the time the contract in question was made Messrs. Burke, Snook, and Hendricks constituted the fire committee. At the date of the required performance and of the tender of the engine there had been a change of two members, and the committee was composed of Messrs. Burke, Noonan, and Croissant. I think the committee to be satisfied is the one in existence at the time of the performance and tender. The old committee had ceased to exist, and had no longer any authority to act in the capacity of a committee.

It is admitted by both parties that the engine failed on the first trial, and some of the witnesses testified that the failure was a complete and signal one; but the vendor claimed the failure to be in consequence of poor coal. A second and more thorough trial was had with better coal,-- cannel coal,-- and it is claimed by plaintiff that the engine in fact performed all its functions strictly in accordance with the specifications and requirements of the contract, and that the committee ought to have been satisfied, if they were not. The testimony was very full on this point, though to a considerable extent in conflict. Although there seems to be some ground for a difference of opinion on this point, upon the whole I am constrained to think, though not with entire confidence, that it did come up to the specifications, and that the committee might well have been satisfied. All the three parties who composed the committee at the time the contract was made, and who signed the contract, were satisfied with its performance, and considered that the engine, in all particulars, came fully up to the requirements of the contract; and they so reported to the board of trustees. But a majority of the committee, as then constituted, Messrs. Noonan and Croissant, officially reported that the performance was not satisfactory to them; that the engine failed to get up steam in the time required, and to keep up steam to a sufficiently high point to work continuously and effectively; and that they were not satisfied with its performance in these particulars. Burke, constituting a minority of the committee of three, made a contrary report. The town trustees, acting on the report of the majority, rejected the engine. If this were all, there can be doubt upon the authorities, I think, that the engine was properly and lawfully rejected.

But it is insisted, and there is some ground for suspicion on this point, that notwithstanding the report of Mr. Noonan that he was not satisfied with the engine in the particulars indicated, yet he was in fact satisfied in his own mind, and so expressed himself in private conversations with Mr. Silsby and other private parties, but that in consequence of popular feeling, and an opposition to the contract and to the purchase of any engine of that make and character at all, developed in the town of Chico after the making of the contract, he had ignored his own convictions in regard to the performance of the engine, and falsely and in bad faith reported against it, in obedience to general popular clamor, in order not to injure his business or his own popularity among his neighbors.

I am disposed to think that if such were clearly shown to be the state of facts, the court would be justified in disregarding the official report, as having been made in bad faith and in fraud of the rights of the other contracting party, and in adopting Noonan's own real conviction upon the subject. But I cannot say that the state of facts claimed is so satisfactorily shown as to justify me in holding the performance of the engine to be in fact satisfactory to Mr. Noonan, in the face of his official report, and his positive testimony to the contrary. There is, undoubtedly, testimony tending strongly to support the hypothesis insisted on by plaintiff, and circumstances tending to throw strong suspicion upon the acts in question. Mr. Silsby testifies that on the evening of the test, Mr. Noonan 'expressed himself as being perfectly satisfied with the engine. ' He says:

'The next day after the trial, at his store, in Chico, Alderman J. C. Noonan said to me: 'Mr. Silsby, I

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