Hall v. Durham Loan & Trust Co.

ClarksoN, J. The defendants will be termed in the opinion “administrators.” Questions presented by plaintiff: (1) Is the estate of an employer of a clerk in a warehouse, employed for a definite period of time, liable to said clerk for his salary for the unexpired time, accruing after the death of the employer? We think so; death did not terminate this type of contract. As to contracts made by a corporation, which became insolvent and was placed in the hands of a receiver, see Lamson Co. v. Morehead, 199 N. C., at p. 168, and cases cited. Plaintiff’s exceptions and assignments of error are to the effect that on all the evidence the court below held that plaintiff could not recover from the defendants individually. In this we can see no error. The court below allowed a recovery against defendants in their representative capacity for the amount of $650. The plaintiff alleges, and the evidence is all to the effect, that plaintiff had an entire or indivisible contract with defendants’ intestate, J. D. Hamlin, as an employee in the capacity of clerk for the tobacco season of 1929 and 1930, at an agreed price of $1,500. That J. D. Hamlin died 30 December, 1929, and plaintiff had been paid $850, and there was unpaid $650 on the contract. The death of Hamlin, under the facts and circumstances of this case, we do not think relieved his estate of this unpaid obligation. If plaintiff was ready, able and willing to perform his part of the contract, tendered his services to the defendants, administrators of the estate of J. D. Hamlin, and they refused to continue him in the employment, plaintiff’s remedy was to sue for the breach or use due care to minimize the loss and at the expiration of the time for fulfilling the contract to sue for the balance, less what plaintiff made in the interim. Smith v. Lumber Co., 142 N. C., 26. “The general principle is fully recognized with us that, in ease of contract broken or tort committed, the injured party should do what reasonable care and business prudence require to minimize the loss.” Hoke, J., in Yowmans v. Hendersonville, 175 N. C., p. 579; Mills v. McRae, 187 N. C., at p. 709; Monger v. Lutterloh, 195 N. C., at p. 280; Gibbs v. Telegraph Co., 196 N. C., at p. 522. *738 If tbe defendant administrators refused to carry out tbe contract between plaintiff and tbeir intestate, J. D. Hamlin, tbe estate would be liable to plaintiff in accordance witb tbe law above set forth. In Pugh v. Baker, 127 N. C., at p. 7-8, is tbe following: “Tbe plaintiff was employed by Carter, not at tbe will of Carter, but by tbe year, payments to be made monthly for bis work, and tbe appointment of an administrator, and bis ratification of tbe contract of bis decedent, during tbe year 1898, could not bave affected, one way or tbe other, tbe original contract between tbe plaintiff and Carter. Tbe plaintiff did exactly what be contracted to- do witb Carter, and tbe contract was binding on Carter during bis life, and on bis personal representative after bis death. But we find elsewhere numerous authorities for this position. ‘Under a contract for employment for a specified time, tbe employee may recover from tbe personal representative as such for tbe whole term, though part'of tbe services were rendered after tbe employer’s death.’ 8 Am. and Eng. Enc. Law (2 ed.), p. 1008, and cases there cited.” In 24 C. J. (Executors and Administrators), part section 472, p. 53-4, tbe following is laid down: “Executors or administrators are in general bound by all tbe -covenant or contract obligations of tbeir decedents, except such as are personal in tbeir nature and of which personal performance by tbe decedent is of the essence; or such as are terminated by decedent’s death, even though performance is detrimental to tbe estate; and where tbe personal representative neglects or refuses to carry out tbe contract of tbe decedent, tbe other party has the usual remedies, as in electing to treat it as rescinded and claiming damages. Conversely, tbe executor or administrator has tbe right to carry out tbe contracts of bis decedent, even though they are of a personal nature, and enforce tbe fulfillment of obligations to bis decedent where likely to prove beneficial to tbe estate. (Note i.) An administrator may perform a contract of bis intestate for tbe estate’s benefit without an order therefor from tbe county court, where tbe contract is not of a strictly personal nature, assuming tbe risk of being required to make good any loss that may ensue, and if be acts in good faith without such order to comply witb intestate’s contract bis acts as to tbe other party to tbe contract are binding upon tbe estate. Kadish v. Lyon, 229 Ill., 35, 82 N. E., 194.” “Where tbe personal representative performs tbe contract or covenant of bis decedent and completes tbe transaction, tbe estate will be ■ held bound for any loss sustained thereby, and will be entitled to any profit realized in consequence.” 24 C. J., supra,, part sec. 472, at p. 55. In Siler v. Gray, 86 N. C., at p. 570, we find tbe following: “It is true that tbe cases put down in tbe books, like those cited by us, are generally those in which tbe contracts sued on bave been to marry — to *739 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.” In Burch v. Bush, 181 N. C., at p. 127: “Those of a strictly personal nature, involving particular personal skill or taste, such as a contract of an author to write a book, an artist to paint a picture, a sculptor to carve a piece of statuary, a singer to give a concert, and a promise to marry, are personal contracts and die with the person. Death makes the performance of such contracts impossible; and, indeed, removes the main object and inducement for the agreement. Executors and administrators are unable to perform such contracts, and the estate of the deceased cannot be held liable in damages by reason of the failure to complete them. Ordinarily, contracts falling under this exception come under the general rule, and death does not excuse performance. 13 C. J., 643, et seqAt p. 128: “Of course, where the personal representatives of a deceased are able to do so, and, in good faith, offer to complete the contract, and the other party refuses to accept such offer and declines to permit the personal representatives to proceed, such would relieve them from further performance. . They would be entitled, then, to an accounting, and to recover as upon a quantum meruit. Whitlock v. Lumber Co., 145 N. C., 120; Navigation Co. v. Wilcox, 52 N. C., 481, and Buffkin v. Baird, 73 N. C., 283. Again, the surviving party may abandon the contract and thus forfeit his right to call upon the personal representatives of the other party to continue with the agreement.” Harris v. Wright, 118 N. C., 422; Harwood v. Shoe, 141 N. C., 161. In Snipes v. Monds, 190 N. C., at p. 191, citing numerous authorities, it is said: “An executor cannot, by any contract of his, fasten upon the estate of his testator liability created by him, and arising wholly out of matters occurring aft&i' the death of the testator.” (Italics ours.) In Allen v. Armfield, 190 N. C., at p. 870-1, we find: “A personal representative is not answerable in his official character for a cause of action not created by the decedent. As the Court said in Whisnant v. Price, 175 N. C., 611, the uniform rule is that no action will lie against the personal representative of a deceased person except upon some claim which existed against the deceased in his lifetime and for a claim accruing wholly in the time of the administration, the administrator is liable only in his personal character. Snipes v. Monds, ante, 190.” The other question presented by plaintiff: (2) Was there sufficient evidence to go to the'jury on the question of a contract of employment between the defendants individually and the plaintiff for that portion of the tobacco season of 1929-30 expiring subsequent to the death of plaintiff’s former employer? We think not. *740 In the present case the defendant’s administrators carried out the contract made by plaintiff with their intestate, and plaintiff, under the facts and circumstances of this case, can recover from them only in their representative capacity. Plaintiff testified in part: “I do not remember Mrs. Swindell (one of the administratrices) mentioning anything about not making any new contracts, but wanting to give us an opportunity to' complete our contracts with her father, that we might leave if we desired to do so, and that if we continued we would have to file'our claim against the estate and that she didn’t know how long it would be before we received our money. . . . .No price was mentioned between Mrs. Swindell and myself. I did not have any understanding with Mrs. Swindell as to what amount would be paid me at all. I expected to get the amount Mr. Hamlin had contracted to pay me because she didn’t mention what she was going to pay us, so I just expected the balance of my salary. I expected some arrangements would be made to pay me before or directly after the season closed. I expected the administrator's to pay me. I didn’t expect I had a contract with the individuals. I expected the administrators to pay me. I considered I made a contract with the individuals as administrators. ... I have brought suit for a certain amount against the estate.” There were certain expressions, according to plaintiff’s testimony, made by Mrs. Swindell tending to show individual responsibility, but at the same time reasonably construed with plaintiff’s testimony above set forth, it indicates they were made as an administratrix carrying out a contract that in law the administrators were bound to carry out or suffer loss. In fact, from the above testimony, plaintiff looked to the estate for payment. The other evidence on the part of plaintiff was not sufficient to be submitted to a jury to show individual responsibility on the part of defendants. The judgment below is Affirnted.