Williams v. Hirsiiorn

• Decision Date: 18 February 1918
• Citation: 103 A. 23,91 N.J.Law 419
• Parties: WILLIAMS v. HIRSIIORN.
• Court: New Jersey Supreme Court

103 A. 23

91 N.J.Law 419

WILLIAMS

v. HIRSIIORN.

Supreme Court of New Jersey.

Feb. 18, 1918.

(Syllabus by the Court.)

Appeal from District Court of Camden.

Action by Lewis Williams against Jacob Hirshorn. Judgment for plaintiff, and defendant appeals. Affirmed.

Argued November term, 1917, before SWAYZE, TRENCHARD, and MINTURN, JJ.

Stackhouse & Kramer, of Camden, for appellant. T. Harry Rowland, of Camden, for appellee.

TRENCHARD, J. The plaintiff below sued to recover the balance alleged to be due on his contract with the defendant wherein the plaintiff agreed to make the walls of the defendant's cellars waterproof, and the latter agreed to pay $50 upon completion, "the balance ($50) to be paid after a rain and a satisfactory test has been made."

We are of the opinion that the judgment for the plaintiff rendered by the trial judge, sitting without a jury, must be affirmed. We think the motion to nonsuit was properly denied, and that a jury question was presented at the end of the case. It was admitted that the work was done by the plaintiff, and that the balance sued for had not been paid. It was also admitted that after the work was finished there had been "a rain." The controversy turned upon the question: Had "a satisfactory test" been made?

When by the terms of a contract work is to be paid for after "a satisfactory test has been made," it must be satisfactory to the one who is to pay for it, if, as here, the contract is silent as to the person to whom the work shall be satisfactory. Singerly v. Thayer, 108 Pa. 291, 2 Atl. 230, 56 Am. Rep. 207; Campbell Printing Press Co. v. Thorp (C. C.) 36 Fed. 414, 1 L. R. A. 645. The trial judge found that, if there had not been a "satisfactory test," there could not be one, and that was so through no fault of the plaintiff. The defendant always expressed himself as dissatisfied, giving as a reason that after a heavy rainfall there was considerable water in the cellars. It is true that there was, but the trial judge found that it came in the cellar windows, with which the plaintiff's contract had nothing to do, and over which he had no control, and there was abundant evidence to support that finding. Indeed, the proven statements and conduct of the defendant indicated that he himself thought that the water came in the windows, but the evidence tends to show that he never corrected that trouble.

Now, the rule of law is that, where a promisor agrees to pay for work or goods provided he is satisfied with...