These conflicting claims present obvious questions of fact for a jury. Numerous exceptions were taken at the trial which can be better considered generally than in detail. According to the defendant's statement that the work was to be satisfactory to him, he asked the court to instruct the jury that he had the right to reject the first portrait if he was not satisfied with it.

The judge instructed the jury that "satisfactory" means 67 "reasonably satisfactory"; but in response to another request he also instructed the jury that "an artist, if he agreed to paint a picture to one's satisfaction, has no cause of action for the price unless the buyer is satisfied, however good the picture is," adding: "But unless the man returns the picture he is conclusively held to be satisfied." This last instruction, without the added sentence, states the law correctly, according to the current of authority, and in giving the preceding instruction, that a portrait must be "reasonably satisfactory," the judge doubtless had in mind another class of cases to which that limitation may apply.

When the subject of the contract is one which involves personal taste or feeling, an agreement that it shall be satisfactory to the buyer necessarily makes him the sole judge whether it answers that condition. He cannot be required to take it because other people might be satisfied with it; for that is not what he agreed to do. Personal tastes differ widely, and if one has agreed to submit his work to such a test he must abide by the result. A large number of witnesses might be brought to testify that the work was satisfactory to them, that they considered it perfect, and that they could see no reasonable ground for objecting to it. But that would not be the test of the contract, nor should a jury be allowed to say, in such a case, that a defendant must pay because, by the preponderance of evidence, he ought to have been satisfied with the work, or, in other words, that it was "reasonably satisfactory." Upon this principle numerous cases have been decided.

In McCarren v. McNulty, 7 Gray, 139, an action to recover the price of a bookcase, the court said: "It may be that the plaintiff was injudicious or indiscreet in undertaking to labor and furnish material for a compensation, the payment of which was made dependent upon a contingency so hazardous or doubtful as the approval or satisfaction of a party particularly in interest. But of that he was the sole judge. Against the consequences resulting from his own bargain the law can afford

him no relief. Having voluntarily assumed the obligations and risk of the contract, his legal 68 rights are to be ascertained and determined solely according to its provisions." Gibson v. Cranage, 39 Mich. 49, was to the same effect, where the subject of the action was a portrait.

In Zaleski v. Clark, 44 Conn. 218, the plaintiff was to make a bust of the defendant's deceased husband satisfactory to her. The court held that it was for her alone to determine whether it was so, and that it was not enough to show that her dissatisfaction was unreasonable.

Brown v. Foster, 113 Mass. 136, 18 Am. Rep. 463, was for a suit of clothes. Devens, J., said: "It is not for anyone else to decide whether a refusal to accept is or is not reasonable, when the contract permits the defendant to decide himself whether the articles furnished are to his satisfaction."

The doctrine was carried to very great length in Singerly v. Thayer, 108 Pa. St. 291, 56 Am. Rep. 207, 2 Atl. 230, where an elevator had been erected in a building and "warranted satisfactory in every respect." It was held that, if it had been substantially completed so that the owner of the building could understand how it would operate, it could be rejected if it was not satisfactory.

One

In Duplex Boiler Co. v. Garden, 101 N. Y. 387, 54 Am. Rep. 709, 4 N. E. 749, the opinion sets out the two classes of cases, with reference to which a distinction has been made. class is that which involves personal taste and judgment, examples of which we have shown, and the other class is that where the subject matter of the contract is such that the satisfaction stipulated for must be held to apply to quality, workmanship, salability, and other like considerations, rather than to personal satisfaction. For example, if one agrees to sell land with a satisfactory title, and shows a title valid and complete, the parties must have intended such a title to be satisfactory, rather than to leave an absolute right in the purchaser to say, "I am not satisfied," when no reason could be shown why he should not be satisfied. So if one agrees to do work in a satisfactory manner it must mean a workmanlike manner -as well as it would be expected to be done rather than a merely personal or whimsical rejection. It is this class of cases to which the term "reasonably satisfactory" applies. Hence in the boiler 69 case, last cited, it was held that a simple allegation of dissatisfaction, without some good reason assigned for it, might be a mere pretext, and would not be regarded.

In Wood Reaping Co. v. Smith, 50 Mich. 565, 45 Am. Rep. 57, 15 N. W. 906, the court says: "In the oLe class the right of decision is completely reserved to the promisor, without being liable to disclose reasons or account for his course, and a right to inquire into the grounds of his action and overhaul his determination is absolutely excluded from the promisee and from all other tribunals. In the other class the promisor is supposed to undertake that he will act reasonably and fairly, and found his determination upon grounds which are just and sensible, and from thence springs a necessary implication that his decision in point of correctness and the adequacy of the grounds of it is open to consideration and subject to the judgment of judicial triers": See, also, McClure v. Briggs, 58 Vt. 82, 56 Am. Rep. 557, 2 Atl. 583; Daggett v. Johnson, 49 Vt. 345; Hartford Sorghum Co. v. Brush, 43 Vt. 528; 1 Beach's Modern Law of Contracts, sec. 104.

Even in cases of the latter class, where a rejection is made in good faith, the dissatisfaction of the purchaser is held in many decisions to be sufficient: See note to Duplex Co. v. Garden, 54 Am. Rep. 709 (711).

The instruction to the jury in the present case that "satisfactory" means "reasonably satisfactory" was erroneous as applied to the subject matter of the alleged contract.

Evidently the trial judge thought that the definition of the term was of little weight, because the defendant had not returned the pictures, or either of them, and hence he added the words: "But unless the man returns the pictures he is conclusively held to be satisfied." The same instruction appears so clearly in other parts of the charge that the jury must have understood that the retention of the pictures made the defendant liable for the price of both.

Taken generally, the instruction would be quite correct, upon the ground that one cannot retain the property of another and still refuse to pay for it. But the instruction as 70 given ignores the defense set up in this case, which is that the first picture was not accepted and the second not completed.

The demand relied on by the plaintiff is contained in his letter of January 7, 1896, in which he asks the defendant to send him both pictures for exhibition. To this the defendant replied that he wanted one and objected to the other being shown as a likeness of his wife. He also testified that he had not objected to the removal of this one, but only to its exhi

bition. Now whether, under the circumstances of this case, there was a refusal to return the pictures, or an excuse for the retention of the other because it was not completed, were questions of fact for the jury. The question whether the contract was as claimed by the defendant also raised a question of fact. If the jury had found that the contract was for a satisfactory portrait, that the second was satisfactory but not completed, and that the other was not returned because of the suggestion of its exhibition, they might have found for the defendant. The facts that the pictures were on the walls of the defendant's home, and that he had paid for the frames, are such as would naturally be considered in determining an acceptance, but they do not conclude such determination nor remove the questions from the jury. The instruction, therefore, that by the mere retention of the pictures, under the circumstances of the case, the defendant was conclusively held to be satisfied with and liable for both, was erroneous.

New trial granted.

CONTRACT TO DO WORK TO THE SATISFACTION OF ANOTHER-CONSTRUCTION OF.-A contract for a portrait to be "satisfactory" to the customer gives him the option of refusing it at his pleasure: Gibson v. Cranage, 39 Mich. 49, 33 Am. Rep. 351. Compare Adams etc. Boiler Works v. Schnader, 155 Pa. St. 394, 35 Am. St. Rep. 893, 26 Atl. 745.

CONTRACTS.-THE RETENTION OF BENEFITS under a contract does not necessarily preclude the defendant from setting up, when sued for the contract price, that the work was not done according to the stipulations of the parties: Mack v. Snell, 140 N. Y. 193, 37 Am. St. Rep. 534, 35 N. E. 493, and see Edison etc. Electric Co. v. Canadian Pac. Nav. Co., 8 Wash. 370, 40 Am. St. Rep. 910, 36 Pac. 260.

MUNICIPAL

KING V. GRANGER.

[21 R. I. 93, 31 Atl. 1012.]

CORPORATIONS-INJURY FROM OVERTAXED SEWERS-LIABILITY.-If a city turns into a sewer a much larger amount of surface water and sewage than was contemplated at the time of its construction, it is answerable in damages to an abutter who is injured thereby. Hence, it is liable if, after a sewer is constructed and an abutter has rightfully connected his premises therewith, it changes the grade of streets and turns into the sewer a large amount of surface water and sewage, formerly flowing in another direction, thereby overtaxing the sewer and causing a retroflux of sewage through such connection and upon the premises of such owner, to the latter's injury.

RELEASE-INJURY FROM CONNECTION WITH SEWERS -CONSTRUCTION.-A release, required by statute, as a condition of an abutting property owner's making connection with a city sewer, must be construed in view of the facts and conditions existing at the time of its execution, as well as those reasonably to be anticipated. It does not bar him from all claims for damages which may subsequently arise by reason of such construction. Hence, if the city, after the construction of a sewer, changes the grade of streets and turns into the sewer a large amount of surface water and sewage formerly flowing in another direction, thus overtaxing the sewer to such owner's injury, the city is answerable in damages notwithstanding such a release.

RELEASE REQUIRED BY STATUTE EQUIVALENTSEWER CONNECTIONS.-An agreement, by the owner of abutting property, who has been permitted to make connection with a city sewer, "that no claim for damages which may be occasioned to such estate, or any property thereon, in any manner, by the construction, use, or existence of such drain or connection, shall be made against the city," while not technically a release, must be held equivalent to the release required by statute as a condition of making such connection.

MUNICIPAL CORPORATIONS SEWERS CHANGE OF PLAN.-When a city desires to drain a much larger territory by the use of a sewer than was originally contemplated, and larger than the sewer is capable of draining, it must increase its capacity, for it cannot materially change its plan as to the territory to be drained without also changing its plan as to the size of the sewer.

MUNICIPAL CORPORATIONS-SEWERS-DUTY AS TONEGLIGENCE-LIABILITY.-When a plan for a sewer has been adopted by a city, and the sewer constructed in accordance therewith, judicial discretion ends and ministerial duty begins. The city then becomes answerable in damages for injuries to others resulting from the negligent discharge of such duty, or the negligent omission to discharge it.

Trespass on the case against a city, heard on demurrer to the declaration.

Irving Champlin, for the plaintiff.

Francis Colwell, city solicitor, for the defendant.

94 TILLINGHAST, J. The case which the declaration states is briefly this: The city of Providence constructed a sewer in Manton avenue, a public highway, for the purpose of carrying off the surface water, sewage, and drainage from said avenue and the land adjacent thereto. The plaintiff, who was and is a land owner on said highway, was assessed his proportional part of the expense of constructing said sewer, which assessment was paid by him. Thereafterward, on the ninth day of October, 1891, he made application to the commissioner of public works of the city for leave to connect his estate with said sewer for the purpose of taking the drainage and sewage