McNEIL v. ARMSTRONG, 81 F. 943

BRAWLEY, District Judge (after stating the facts as above). We do not find any error here. The testimony shows that the work was done under the inspection of the owner and his agents, no material defects being pointed out or objections made during' its progress. Such slight defects as appeared have been corrected, or allowance has been made for them. Some of the objections were of a trivial nature, others were evidently founded upon a mistake, and the owner is in possession and occupancy.

The case was heard, by consent of parties, without a jury, by an uncommonly careful and conscientious judge, who finds, as matter of fact, “that the roof was constructed, both as to work and materials, in accordance with the contract, plans, drawings, and subsequent agreements.” It is contended hv the plaintiff in error, and his first prayer for instruction asks the court to rule, that by the terms of the contract both materials and work were to he to the entire satisfaction of the architects and of the owner, and that the satisfaction of such architects and owner is a condition precedent to recovery.

It is not necessary to consider that class of cases which holds that a simple allegation of dissatisfaction, without some good reason assigned for it, is to he considered as a mere pretext, and not to be regarded.

They fall within the rule that “that which the law will say a contracting party ought in reason to be satisfied with, that the law will say he is satisfied with.” Where the object of a contract is to gratify taste and personal preferences, a different rule prevails, and parties may not unreasonably he expected to he bound by the opinion honestly entertained of the person whom he undertakes to satisfy, and performance must accord with the terms of the contract.

Contracts of this nature must be explicit, for it is not to he presumed That parties will undertake a work the remuneration for which depends upon the mental condition of others, which they alone can disclose. The tiles with which this roof was to be covered were to be of a peculiar and rare shade of color.

It was not unreasonable that the owner and his architects should demand that they should accord with their tastes, and, however capricious and exacting their tastes might he, it was the duty of the contractor to comply with his contract to satisfy them; and this appears to have been "done, for there is no allegation or proof that the materials furnished were uot to the entire satisfaction of the owner and his architects. The work to be done in putting on the tiles was defined by the plans, specifications, and details prepared by the architects. This involves no question of personal tastes or preferences.

The work to he done is specifically defined, and the manner in which it is done is determined by rules which leave nothing to arbitrary caprice. It is earnestly contended that the court should construe this conixact; according to the presumed intention of the parties, and That the work to be done, as well as the materials furnished, should be satisfactory to the owner and architects, that the same reasons apply equally to both, and the terms, being somewhat ambiguous, should have such reasonable construction.

We have already indicated the grounds upon which there might be a distinction between the requirements as to material and work, but it is sufficient to say that the contract does not so expressly provide, and, inasmuch as it was prepared by the plaintiff in error, the well-settled rule is applicable, that in case of doubt or ambiguity the words are to be taken mosl strongly against the party employing them, and such construction adopted as is most favorable to the other party. The finding oí the court that the work was done in accordance with the contract settles the question.

The judgment of the circuit court is affirmed.