Siler v. . Gray

Ruffin, J. There being no evidence offered in support of the breach, alleged to consist, in the non-payment of the sums stipulated to Roxana E. Moore and Harriet T. Sloan, that part of the case is excluded from our consideration, and the plaintiff’s right to recover left to depend upon, as the only other matter complained of, the failure of the personal representatives, or heirs at law, of the intestate L. F. Siler, after his death, to contribute to the support of J. R. Siler and his wife — as to which this court fully concurs in the ruling of His Honor in the court below. The general rule unquestionably is, that the personal representatives of a party are bound to perform all his contracts, whether specially named in them or not, or else make compensation for their non-performance out of his estate. But to this there is the exception, as well established as the rule itself, of all *569 such contracts as require something to be done by the party himself in person. In 1 Chitty’s Pleading, 19, it is said that no action lies against the executor upon a covenant to be performed by the testator in person, and which consequently the executor cannot perform; and again, in Chitty on Contracts, 138, that death, though not in general a revocation of an agreement, may be such when the engagement is a personal one, to be performed by the deceased himself, and requiring personal skill or taste. In Pollock on Contracts, 367, the principle is thus stated: “ All contracts for personal service, which can be performed only during the life of the contracting party, are subject to the implied condition that he shall live to perform them, and should he die, his executor is not liable to an action for the breach of contract occasioned by his death.” In such cases, it is held that the act of God furnishes an excuse sufficient. Accordingly in Bourt v. Firth, 4 Court of C. P., 1, a plea to an action on an apprentice-bond that the apprentice was prevented by sickness from performing the contract, was ruled to be a valid plea and the defence a good one, the court saying that incapacity, by reason of the intervention of an act of God, to perform personal service, is an excuse for its non-performance, notwithstanding an absolute and unconditional covenant to render the same; and again in Farrow v. Wilson, reported in the same volume at page 744, it was held that where one party covenanted to serve another as farm-bailiff, the death of either party dissolved the contract — such being an implied condition, it was said,.in every contract for personal services — and the same doctrine has been recognized in Robinson v. Davidson, 6 Court of Exchequer, 268; Taylor v. Caldwell, 113 E. C. L. Rep., 826; Dickey v. Linscott, 20 Me., 453. Assuming such to be the law, under which does the case at bar fall ? the general rule, or the exception as stated ? *570 This must depend upon the intention of the parties, for at last, it is in every case purely a question as to their intention. It is true that the cases put down in the books, like those cited by us, are generally those in which the contracts sued on have been to marry — to teach an apprentice — to render services as an author, or as a doctor or a lawyer — such as will be determined by the very nature of the services to be rendered or the skill requisite to perform them, to the exclusion of all thought of performance by any other person than the contracting party. But still this is 'so, even in contracts of that nature, because the law implies such to have been the intention of the parties, and for that reason, and that alone, construes them to be personal contracts, and takes them out of the general rule. Now if such be the consequence of an implied intention of the parties, how much more should it follow in the case of a contract, in which they have clearly manifested a purpose to treat their contract as personal, and the very circumstances surrounding them forbid that any other construction should be put upon it? Here, the contract on the part of the defendant’s intestate was that he would administer to the comfort of his father and mother during their lives, and would see that they were provided for; and further, that he would jointly occupy with them their home, and he and his family become members of their family; thus, every feature of it depending upon the relation which he, as a near kinsman, bore to them, and upon the confidence which they reposed in him personally. It is to be observed, moreover, that the contract was an entire one, to be performed by the administrator in whole or not at all. If bound to maintain them, and see to their comfort, he must needs have had the correlative right to *571 demand admittance, stranger though he might have been, into their home, that he might become an inmate thereof. If in the life-time of all the parties, the defendant’s intestate had sought to introduce a stranger into the family, and through his agency to have performed the services stipulated to be rendered by himself, can it be supposed that the law would, for one moment, have tolerated such a course ? and if not, then should the law, after his death, furnish a substitute for him, in his administrator, when he, himself, could not appoint one? We think not; and for the reason that the parties to the contract, manifestly, never contemplated or intended that there should be one. Our conclusion therefore is that so much of said agreement as imposed upon the defendant’s intestate the duty of providing for the plaintiff’s intestate and his wife, and of looking after their comfort, was purely personal in its nature, and inasmuch as the defendant could not have enforced his right to perform it, so neither is he liable to an action for not having done so. There is no error, and the judgment of the court below is affirmed. No error. Affirmed.