The opinion of the court was delivered by
Rowell, J.Defendant gave a written order to plaintiffs, through Bradley, their agent, for a Prescott organ, to be paid for at a stipulated price within a time named, if received in good order. Bradley seasonably carried an organ to defendant’s house that was in all respects like the one ordered except in a slight and an immaterial particular; but defendant, having in the mean time bought and received an Estey organ from another vender, refused to receive plaintiffs’ organ, or to let Bradley set it up in his house, whereupon negotiation ensued between him and Bradley, wherein Bradley gave him to understand, and he did understand, that if he would let Bradley set up the organ, the trade should .be thrown up if he was not satisfied with it. On this condition, and this only, defendant allowed Bradley to set up the organ. Afterwards defendant thought, though without cause, that he was dissatisfied with the tone of the organ, and notified Bradley of his dissatisfaction, but Bradley did not take away the organ, and plaintiffs now seek to maintain book account on the score of the delivery thus effected, on the ground, first, that the delivery must be taken to have been under the original order, as Bradley had no authority to vary it in the manner attempted; and second, if he had, that defendant, having no cause to be dissatisfied, was bound to be satisfied.
As to the first of these grounds it is sufficient to say, that though when an agent exceeds his authority his principal may repudiate the transaction altogether, yet he cannot adopt one part of it and repudiate another, but his adoption of it in part is an adoption of it as a whole. Now book account will not lie for goods sold and not actually delivered, and so the plaintiffs seek to avail themselves of the delivery effected by Bradley in order to maintain this action, and by *87thus adopting that part of the transaction they adopt and must stand by the whole of it.
As to the second ground, it is to be noted that defendant did not take the organ to see whether it answered the contract or not, for if he had, and it did, he is bound to keep and pay for it" whether satisfied or not; but he took it to see whether it was satisfactory to him or not. Neither he nor any of his family were competent to judge as to the quality of the organ, and so he called in an expert to test it, and he told him the tone of it was good, and better than that of the Estey organ, which he seemed to like; but notwithstanding the opinion of the expert, he was so under the spell of the Estey organ vender that he still thought he was dissatisfied with the tone of the organ; and if he really thought so he toas so, for as a man “thinketh in his heart, so is he.”
But it is said that he was hound to be satisfied, as he had no ground to be dissatisfied. He was bound to act honestly, and to give the instrument a fair trial, and such as the seller had a right, in the circumstances, to expect he would give it, and therein to exercise such judgment and capacity as he had, for by the contract he was the one to be satisfied, and not another for him. If he did this and was still dissatisfied, and that dissatisfaction was real and not feigned, honest and not pretended, it is enough, and plaintiffs have not fulfilled their contract; and all these elements are gatherable from the report. This is the doctrine of Hartford Manufacturing Co. v. Brush, 43 Vt. 528, and of Daggett v. Johnson, 49 Vt. 345. In the former case the defendant was required to bring to the trial of the evaporator only honesty of purpose and judgment according to his capacity, to ascertain his own wishes, and was not required to exercise even ordinary skill and judgment in making his determination. Daggett v. Johnson turned on an error in the admission of testimony; but Judge Redfield goes on to discuss the merits of the case somewhat, following substantially in the line *88of Brush’s case, and. citing it as authority. But Daggett v. Johnson is distinguishable in its facts from Brush’s case and from this case, in that the defendant omitted to test the pans in the very respect in which he knew it was claimed their excellence consisted. In McCarren v. McNulty, 7 Gray, 139, plaintiff agreed to make a book-case for defendants of a certain kind and dimensions, in a good workmanlike manner, “to the satisfaction” of one of the defendants, and an action for work and labor in rfiaking it was held not to be maintained by proof that it was made according to the contract, without also proving that it was satisfactory to or accepted by that defendant. The court said that against the consequences resulting from his own bargain the law could not relieye the plaintiff; that having assumed the obligations and risk of the contract, his legal rights were to be ascertained and determined solely by its provisions.
In Brown v. Foster, 113 Mass. 136, plaintiff agreed to make defendant a satisfactory suit of clothes, but defendant returned them as unsatisfactory. The court said the plaintiff could recover only upon the contract as made; that even though the clothes were such that the defendant ought to have been satisfied with them, it was yet in his power to reject them as unsatisfactory, and that it was not for any one else to decide whether a refusal to accept was reasonable or not, when the contract permitted the defendant himself to decide that question.
In Zaleski v. Clark, 44 Conn. 218, plaintiff made a plaster bust of defendant’s deceased husband under a contract that she was not bound to take it unless she was satisfied with it. When it was finished she was not satisfied with it and refused to accept it. It was found that the bust was a fine piece of work, a correct copy of a photograph furnished by the defendant, and that it accurately portrayed the features of the subject, and that the only fault found with it was that it did not have the expression of the deceased when *89living-, which was caused by no imperfection of the work but by the nature of the material. The court said plaintiff had not fulfilled his contract; that it was not enough to say that defendant ought to have been satisfied, and that her dissatisfaction was unreasonable; -that she, and not the court, was entitled to judge of that; that a contract to make a bust perfect in all respects, and with which the defendant ought to be satisfied, was one thing, and an undertaking to make one with which she luould be satisfied, was quite another thing; that the former could be determined only by experts, and the latter could be determined only by the defendant herself.
Since the case at bar was decided, the very recent case of Singerly v. Thayer, in the Supreme Court of Pennsylvania, reported in 25 Am. Law Reg. n. s. 14, has fallen under my notice, with the note thereto. There the defendant in error agreed to put in an elevator for plaintiff in error, “warranted satisfactory in every respect.” After trying it defendant refused to accept it, and it was held that if he acted in good faith, he was by the terms of the contract the sole judge whether it was satisfactory or not. The cases are there largely reviewed, and found almost unanimously to sustain the view taken by the court.
Substantially the same principle has been adopted in contracts for service when the right to terminate the contract is reserved if the party is not satisfied, in which case he may terminate it although his dissatisfaction is without cause. Provost v. Harwood, 29 Vt. 219; Rossiter v. Cooper, 23 Vt. 522; Durgin v. Baker, 32 Me. 273.
Judgment reversed, and judgment for defendant to recover his costs.