Estate of Preston v. Smith

Mr. Justice Waterman delivebed the opinion op the Coubt. A right to, in a certain contingency, cancel the contract, was reserved- to appellee, while Preston had no such privilege. The attempt by Preston to bring the undertaking to an end was nugatory, and properly treated by appellee as such. The agreement was a personal undertaking upon the part of Preston, which he could not transfer, and which did not, at his death, devolve upon his executors. In effect, the contention of appellee is that the executors of E. B. Preston are bound for twelve years to continue “ to furnish ” C. L. Smith with what his wants may be of this hose attachment, of any size manufactured, at a margin of twenty per cent above cost, said cost to be agreed upon, “ he retaining ” the right to sell these goods at market price, agreed upon between “him” and said executors; and that the said executors shall push the sale of this swivel by advertising, exhibiting and soliciting trade by their traveling salesmen, or other employes; and shall keep at all times in stock such quantities as will supply the market for demand, and to use their best efforts to create a large demand and a heavy sale of this article.” In other words, that these executors are bound to continue for twelve years to carry on the business of the late E. B. Preston. The contract under consideration contains no such compact. It is manifest that the parties contemplated the personal services of Hr. Preston, his endeavors, skill and effort, and not that of persons appointed to administer upon his estate. The agreements mentioned, to be made as to cost and prices, were to be between appellee and Hr. Preston, not between his executors and “ O. L. Smith.” Contracts for personal service which can only be performed during the lifetime of the party contracting, are subject to the implied condition of his continuing to live and to be in health to perform them, and are terminated by his death or incapacity from illness. Leake on Contracts, 1st Ed., 704; 5 Am. & Eng. Ency. of Law, 136; Pollock’s Principles of Contract, 367; Bishop on Contracts, Sec. 600; Tasker v. Shepherd, 6 H. & N. 575; Geipel v. Smith, L. R., 7 Q. B. 404; Marvel v. Phillips, 162 Mass. 399; Howe Sewing Machine Co. v. Rosenstein, 24 Fed. Rep. 583; Taylor v. Caldwell, 3 B. & S. 826; Dickinson v. Callahan’s Adm’rs, 19 Pa. St. 227; Robson v. Drummond, 2 B. & Ad. 303; Browne v. McDonald, 129 Mass. 66; Spalding v. Rosa, 71 N. Y. 40. Contracts for sale at a valuation price, to be fixed by persons named, are impliedly conditional upon those persons surviving and making the valuation, and are terminated by their death before doing so, the valuation stipulated for, having thus become impossible. Leake on Contracts, 1st Ed. 639; Milnes v. Gery, 14 Ves. 400. For only what was earned up to the time of the death of Mr. Preston, is appellee entitled to prove against his estate. The judgment of the Circuit Court to such amount, being for the sum of $207.91, is affirmed; and the residue of the judgment of the Circuit Court is reversed. Appellant will recover costs in this court. Affirmed in part and reversed in part.