Innes, Officiating C.J.

1. The learned Judge considered that the question for decision was, Did the timber which the plaintiff tendered answer the description stipulated for? Referring to the specific clause in the contract whereby plaintiff agrees to submit to the judgment of Colonel Kerrich (the Superintendent of the Gun Carriage Factory), he was of opinion that the case was distinguishable from the cases of building contracts, in which the certificate of a third party is a condition precedent to the right to recover. He thought that Colonel Kerrich being one of the contracting parties, his judgment could not be regarded as conclusive, and that it was open to the plaintiff to question the reasonableness of the refusal to accept delivery and to show that his tender ought to have been accepted.

2. The clause in the contract is as follows:

The timber shall be of unexceptionable quality, and shall be liable to be rejected if not approved of by the said Lieutenant-Colonel DOyly Kerrich, E. A., or such other person as shall, during the said term, hold the office of Superintendent, Gun Carriage Factory.

3. In the next paragraph of the contract are the following words:

And further, in