ANDREWS v. BELFIELD. [784] [ 785] and the seat of the rumble would appear to be but nine inches at most from the head when down, and therefore almost impossible to sit in in that position. * * * Yours, &c. "J. BELFIELD. "P.S. What would be the effect of an open rumble instead of a box one? Would it not make the carriage look lighter, and so balance it?" The carriage was completed, and forwarded to the defendant on the 17th of March, 1856. On the 22nd he wrote to the plaintiff, as follows: "PAIGNTON, March 22, 1856. SIR, the phaeton has arrived; and I am extremely sorry to be obliged to inform you that it proves to be neither in conformity with my order nor in accordance with the drawing furnished. Putting all minor matters of detail (which are numerous) aside, and waiving for the moment all question of taste, its size alone renders it wholly unsuitable to ponies of 12.2 high, for which, if you will see, it was especially ordered; added to which, I regret to perceive that scarcely a single instruction conveyed in that letter appears to have been attended to. How these mistakes, annoying, doubtless, to you, but tenfold more so to me, should have arisen, is not for me to conjecture. But I have, of course, no alternative than to return the carriage to you, which I presume you would desire that I should do by the same means as that by which it came, and which shall be done on receipt of your reply. And I have only to add that this most untoward circumstance only gives me additional reason to regret that I was not in the first instance furnished with a drawing on a scale, in accordance with my particular request, by which this most unfortunate result would have been wholly obviated. "Yours, &c. "J. BELFIELD." In reply to this letter, the plaintiff reminded the defendant, that, in his letter of the 26th of September, he had stated the ponies. to be 13.2 high, and not 12.2: and, after some angry correspondence, the present action was brought. It appeared that the size of the fore-wheels was 2 ft. 1 in., and that of the hind wheels 3 feet; and that, in lieu of the leather guard to the rumble, the plaintiff had put wood. On the part of the defendant, it was insisted, that, according to the terms of the contract, the defendant had reserved to himself unqualified power to reject the carriage if not built according to his taste, however capricious that might be, provided it was done bonâ fide. For the plaintiff, it was submitted, that the defendant was bound to take the carriage if it was such as in the judgment of the jury no reasonable man ought to have objected to. The learned Judge (although he thought it a question for the Court) asked the jury whether the intention of the parties was that the defendant should have the right to reject the carriage if not built in conformity with his taste, and whether it was one which a reasonable man ought to have objected to: and he referred to the case of Dallman v. King (1): and further he left it to the jury to say whether the mention of the leather guard in the defendant's second letter amounted to a condition, or was merely a suggestion. The jury returned a verdict for the plaintiff, observing that they thought that the mention of the leather guard was matter of suggestion only. The learned Judge reserved leave to the defendant to move to enter a nonsuit, on the construction of the contract: and it was arranged that the plaintiff should take back the carriage at once, without prejudice, and that, in the event of the verdict standing, the damages *should be reduced to 15l.,--the costs to be taxed on the higher scale. M. Smith, Q.C., in Easter Term last, accordingly obtained a rule nisi to enter a nonsuit, "on the ground that the defendant had the right to reject the carriage if it did not meet his approval on the score of convenience and taste, and, the carriage being rejected, the plaintiff was not entitled to recover; " or for a new trial on the ground of misdirection on the part of the learned Judge "in leaving to the jury whether the terms in the letter that there should be a leather guard was a condition, or a suggestion only, enabling the plaintiff to substitute wood." Edwin James, Q.C., and Hawkins, now showed cause: The work having been executed as nearly as possible in exact compliance with the defendant's order, the defendant could have no right capriciously to reject it: and, whether or not the carriage was such as a reasonable man ought to have accepted, as well as what was the real meaning of the letter as to the leather guard, were properly questions for the jury. (CRESSWELL, J.: What pretence is there for saying that the leather guard to the rumble was less a condition than any other part of the order? The defendant chose to have leather.) Dallman v. King (1) is exactly in point. M. Smith, Q.C., and Karslake, in support of the rule: The defendant by his contract reserved to himself the power (1) 44 R. R. 661 (4 Bing. N. C. 105). ANDREWS v. BELFIELD. [ *786 ] [787] to reject the carriage if when finished it did not meet his approval as well on the score of workmanship as of convenience and taste. However fastidious his taste might be, he had a right to reject the carriage, and that without assigning any reasons, provided he was acting bona fide. There is nothing illegal or unreasonable in such a contract, especially with reference to an article of luxury like a carriage. [They cited Taylor v. Brewer (1), Bryant v. Flight (2) and Grafton v. The Eastern Counties Railway Company (3).] So, in Milner v. Field (4), a building agreement contained a proviso that no instalment should be paid unless the plaintiff delivered to the defendant a certificate signed by the surveyor of the latter, that the works were performed according to the specifications; and it was held that the certificate was a condition precedent to the right to payment, and that the want of it was a good answer to the action. (WILLES, J.: A similar decision was come to by this Court in Morgan v. Birnie (5).) In Moffatt v. Dickson (6) certain plans and drawings were to be prepared by the plaintiff subject to the approval of a committee, and subsequently of the Commissioners in Lunacy and Secretary of State, pursuant to the 8 & 9 Vict. c. 126; and it was held that the plaintiff was not entitled to recover anything until the drawings had been approved of by the several parties whose approval was by the statute required. Who but the defendant himself was to judge whether or not the carriage was built according to his taste? (WILLES, J. The jury could only judge according to the general conventional rules of taste.) Precisely so. With respect to the latter branch of the rule, it clearly ought not to have been left to the jury to say whether the addition of the leather guard to the rumble was a condition or a mere suggestion; that was matter of construction for the Judge. CRESSWELL, J. (7): I am of opinion that this rule should be made absolute to enter a nonsuit. The plaintiff's letter of the 17th of September, 1855, conclusively shows that down to that time no contract had been *made between him and the defendant. A drawing of a carriage had been made and submitted to the defendant, but the defendant did not approve of it. In that letter, the plaintiff writes: "If you order, every attention shall be made to any particulars you may think proper as to height of body from ground, height of wheels, (1) 21 R. R. 831 (1 M. & S. 290). (3) 91 R. R. 712 (8 Ex. 701). (6) 93 R. R. 634 (13 C. B. 543). (7) The Lord Chief Justice, for private reasons, took no part in the discussion. &c." Down to this time, therefore, all was open. On the 26th, WILLIAMS, J.: I am of the same opinion. Upon *reading the correspondence between the parties, I cannot arrive at any other conclusion than that the plaintiff, when he consented to put the carriage in hand upon the terms of the defendant's letter of the 26th of September, was content to take upon himself the risk of producing a vehicle which should satisfy the somewhat nice and fastidious taste of the defendant, and that the latter should have the privilege of rejecting it if it did not please him. WILLES, J.: I am of the same opinion. There was no evidence to show that the defendant's refusal to accept the carriage was other than bonâ fide. Upon further consideration, therefore, I think the order. was conditional, and subject to its being executed in a manner which should be in conformity with the defendant's taste. Rule absolute accordingly. 1857. June 6. [ 790 ] [ 791 ] HOLMES v. ONION. (2 C. B. N. S. 790-796; S. C. 26 L. J. C. P. 261.) The defendant engaged the services of one S., a thatcher, for a certain period, at weekly wages, for the purpose of hiring him out to do thatching work for his profit. S. having during the period thatched some stacks of wheat &c. for the plaintiff, for which work the defendant claimed and received payment: Held, that the defendant was responsible to the plaintiff for injury to the wheat &c. occasioned by the negligent manner in which S. did the work. THE declaration stated that the plaintiff was possessed of certain stacks of wheat, &c., and, at the request of the defendant, employed him for certain reward to thatch the same, that the defendant undertook to thatch and did thatch the said stacks, and that the plaintiff paid him a reasonable reward in that behalf. The defendant pleaded,-first, a denial of the retainer and of the defendant's undertaking,-secondly, that the defendant did not thatch the said stacks, thirdly, that the plaintiff did not pay the said reward, fourthly, Not guilty; whereupon issue was joined. The cause was tried before Pollock, C. B., at the last Cambridgeshire Assizes, when the following facts appeared in evidence: The defendant, who was a harness-maker, hired one Simpkin, who was a skilful thatcher, to do for him such thatching as he could procure during a period of six weeks, paying him for his services 6s. per week besides his board and beer, and finding him medical attendance in case anything ailed him during such service; and also providing him with a pony and a boy to assist him, in the event of his being sent beyond three miles to work. Simpkin afterwards, and within the six weeks, engaged himself to thatch some wheat, barley, and oat stacks for the plaintiff, the latter not knowing of his arrangement with the defendant. Simpkin after having commenced the plaintiff's work, and, drawing money from him on account, left it; and, the plaintiff meeting the defendant, the latter told him that Simpkin was his (the defendant's) man, and that, if he (Simpkin) did the thatching, he (the defendant) must be paid for it. At the plaintiff's request, the defendant sent another man, named Clemens, to assist in the thatching; and Simpkin afterwards went back and completed the stacks which he had begun. Both Simpkin and Clemens were paid by the defendant; and the defendant afterwards sent in a bill to the plaintiff for the work so done, and sued the plaintiff for it in the Newmarket County Court, when the plaintiff paid the money into Court, and the defendant afterwards took it out. The wheat and oats subsequently proving to be considerably damaged by wet, this action was brought. At the close of the plaintiff's case, his Lordship was called upon to nonsuit him, on the ground that there was no evidence to go to the jury. This his Lordship declined to do. |