Had the defendant in this case refused to accept the portrait in question, upon the ground that he contracted for the talents and skill of the plaintiff himself, and could not be required, under such a contract, to accept a painting done by any other artist, I am of opinion that the action could not be sustained. One who desires a work of art, and selects his artist, and agrees with him for his skill, is entitled to that, and nothing less- will satisfy the agreement to employ.
But here the evidence warranted the justice in finding that the defendant was satisfied and accepted the work, and that upon the faith of that acceptance, the picture was taken to the framer, framed, and delivered.
Upon the question, whether the portrait was well painted or was a good likeness or not, the evidence was .conflicting, and, (although we are clear that the defendant was not bound to accept any other than a good likeness, and that an artist who undertakes to paint a portrait is bound to make one that shall be a good likeness of the person,) yet, upon the contradictory evidence exhibited on the trial below, we should not interfere with the finding of the justice on this point.
The judgment must, I think, be affirmed.