Viall v. Hubbard

Aldis, J. By the contract the plaintiff was to furnish a monument of “ good white marble.” He did furnish a monument of which the material was “good white marble,” — but it had a blemish, “ a discoloration” on it, across which a part of the inscription was wrought. The auditor finds that this stain was not naturally in the marble — had gotten upon it by some accident — was temporary, and by lapse of time and exposure to the open air and frost would disappear. The plaintiff claims that such a discoloration is not a variance from the contract — that he has substantially furnished just such a monument as he agreed to, and can recover the price. The defendant insists that such a stone is not a compliance with the contract and that he was justified in refusing to accept it. We think the discoloration a material defect, and the defendant fully justified, for that reason, in refusing to accept the monument. He was entitled to “ good white marble,” — not to “ good white marble with a stain on itand he was entitled to such a monument at the time of delivery. He was not bound to wait an indefinite period for the air and the frost to bleach the stained spot. He had a right to just such an article as he bargained for at the time he was to receive and pay for it. There is no kind of a contract in which the purchaser has the. [118] right to have his wishes and instructions more strictly and literally observed than this of the manufacture and erection of a monument to the departed. It is not a matter of trade and profit — nor of taste alone. It is a matter of sentiment and feeling. Such a monument embodies the love and tenderness of the parents toward their deceased child. It is a memorial to perpetuate the purity, the goodness, the virtues of the departed; sometimes to recall tender associations and cherished recollections known only to the survivors ; sometimes to conform to the expressed wishes of the deceased — a sacred obligation; sometimes an emblem of the deceased person’s character and hope of immortality. To erect such a memorial is always the last office of affection, — all that is left for the parent to do, and all that he can’do (however inadequate it may seem) to show his love for and to preserve the memory of his deceased child.. These natural sentiments of the heart are to be religiously respected.. The wishes and directions of the parent have their sources in sentiments that can stand no questioning from others, and are not to be-discussed. “A stranger intermeddleth not therewith.” In the case at bar the parents may well have felt that pure white . marble was the only appropriate emblem for the spotless purity of' their departed child. Discolor it — stain it with a blemish, and the whole meaning of the memorial for them is destroyed. They would feel it a wrong to the memory of their child to erect such a monument. So, too, in regard to the name — the substitution of “ Octavia J.” for “ Octavia Jane ” we deem a substantial defect. The familliar name of the child, — that used in the family, and endeared by many recollections was not there. The parents had the right to have the-inscriptions sculptured on the marble literally and exactly as they had directed, and as the plaintiff had agreed. For such defects it is no answer to say, as the auditor finds — that the marble-worker acted in good faith — that he believed the inscription as he made it would look better, and be more satisfactory. It was his simple duty, where the instructions were exact and specific,, to follow them. . It is claimed that the defendant, by his wife, accepted the monument. If so, he should pay for it. But the auditor does not so> [119] find the fact. Some of the facts reported strongly tend to show an acceptance — some the contrary. If the facts reported amounted in law to an acceptance we should so treat it, though not expressly so found by the auditor. But taken all together they do not. The report gives us a lively picture of a lady much perplexed between her own wishes drawing her in one direction, and the solicitations and arguments of others by whom she was surrounded impelling her in the other. The result of the whole seems to have been, that she got away from the discussion, substantially deferring a decision till her husband could come and see the work. As this decision settles the controversy upon its merits, we need not consider the question as to the form of action. Judgment reversed, and judgment for the defendant for his costs.