and what is the lowest point to which, with the present wheels, it can be kept down. The iron-work for the support of the driving-seat must be incorrectly shown, as it would seem to pass through the dashingleather. The rumble requires a leather guard at the foot, which should come as high as the bottom of the cane, to prevent the panel being scratched by the foot: 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. The back and end of the wing, as shown when the head is off, is very ugly; nor do I quite understand it, unless that portion of the back above the wing is movable, as it is not shown in the drawing with the head above it, which must project when down. The rumble also, as drawn, rather hangs back, which is the fault that I spoke of as being so common. Are the half springs shown. at the back so good as whole springs? I should like also to see the form of the head when open, as so much of the *character of a *784] carriage depends on this. I do not mind the wheels being rather further apart, if that will facilitate any of the alterations to which I have alluded. "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 22d 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."

[*785

*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 2ft. lin., 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, 4 N. C. 105 (E. C. L. R. vol. 33), 5 Scott, 384: 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 157,-the costs to be taxed on the higher scale.

[*786

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, 4 N. C. 105 (E. C. L. R. vol. 33), 5 Scott, 384, is exactly in point. There, it was agreed that the lessee should spend 2007. in repairs, to be inspected and approved of by the lessor, and to be done in a substantial manner; the lessee to be allowed to retain the sum out of the first year's rent of the premises: and it was held, that the lessor's approval was not a condition precedent to the lessee's retaining the rent. Tindal, C. J., there said: "The gist of the agreement is, that the work should be done in a substantial manner; the approval of the *787] lessor was added for the purpose of enabling him to ascertain that the work had been done. It never could have been intended that he should be allowed capriciously to withhold his approval; that would have been a condition which would go to the destruction of the thing granted, and, if so, according to the well-known rule, the thing granted would pass discharged of the condition." So, here, it never could have been intended that the defendant should be permitted capriciously to reject the carriage, though it should have been built in strict accordance with his directions, merely because of some slight deviation from what he chose to set up as his standard of elegance and taste.

M. Smith, Q. C., and Karslake, in support of the rule.-The defendant by his contract reserved to himself the power 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 fastidi

ous his taste might be, he had a right to reject the carriage, and that without assigning any reasons, provided he was acting bonâ fide. There is nothing illegal or unreasonable in such a contract, especially with reference to an article of luxury like a carriage. In Taylor v. Brewer, 1 M. & Selw. 290, the plaintiff had performed work for a committee, under a resolution entered into by them, "that any service to be rendered by him should be taken into consideration, and such remuneration be made as should be deemed right:" and it was held, that an action would not lie to recover a recompense for such work, the resolution importing that the committee were to judge whether any remuneration was due. And Bayley, J., said: "The fair meaning of the resolution is this, that it was to be in the breast of the committee whether he was to have anything, and, if anything, then how much.”

The same principle prevails in Bryant v. Flight, 5 M. & W.

*788] 114, and Grafton v. The Eastern Counties Railway Company, 8 Exch. 701. So, in Milner v. Field, 5 Exch. 829,† 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 specifica

tions; 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, 9 Bingh. 672 (E. C. L. R. vol. 23), 3 M. & Scott, 76 (E. C. L. R. vol. 30).] In Moffatt v. Dickson, 13 C. B. 543, 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.(a)-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 [*789 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 paid to any particulars you may think proper as to height of body from ground, height of wheels, &c." Down to this time, therefore, all was open. On the 26th, the defendant sends this reply: I have duly received your reply to my last, and can only continue to wonder at your disinclination to furnish me with so simple a drawing as I then requested, with a view of obviating, as far as possible, the chance of any misconception which might otherwise arise in respect to my order, which I can now of course give in general terms only, and on the assumption that you undertake to execute it in a manner which shall meet my approval, not only on the score of workmanship, but also that of convenience and taste." He then goes into details. Another drawing seems to have been afterwards sent to the defendant, and returned by him with further remarks and objections. Now, taking into consideration the fact that the plaintiff knew that the defendant was dissatisfied with the drawings, and that the order for the carriage was given only conditionally on its being executed in a manner which should meet the defendant's approval, "not only on the score of workmanship, but also that of convenience and taste," it seems to me, that, unless that conditional order was fulfilled by the delivery of a carriage which should be built in accordance with the taste and convenience of the defendant,-assuming always that the

(u) The Lord Chief Justice, for private reasons, took no part in the discussion.

defendant acted bonâ fide, and not capriciously,-the defendant was not bound to accept it. On that ground, therefore, I am of opinion that the rule should be made absolute.

WILLIAMS, J.-I am of the same opinion. Upon *reading the *790] 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.

HOLMES v. ONION. June 6.

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 Cam*791] bridgeshire 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 68. 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