Mecartney v. Estate of Carbine

Mr. Presiding Justice Waterman delivered the opinion of the court. Few questions are of more frequent occurrence or of more practical importance, while at the -same time so difficult to solve, as those in which the dispute is as to the rights of the respective parties under an action brought by one who has entered into a special contract, a part of which remains unperformed. The agreement between Carbine and appellant was not a mere employment of an agent. It was an undertaking on the part of appellant,to do certain things involving much study, skill and labor, his compensation to be one-fourth of all he recovered. The right to make use of the name of Carbine as plaintiff in these suits undoubtedly terminated with his death; a suit can not be prosecuted in the name of a decedent. Whether a court of equity would not upon proper terms have given to him the right to prosecute a suit in the name of the administratrices, the suit revived by them, it is unnecessary to discuss. It is a presumption of law that the parties to a contract bind not only themselves, but personal representatives. Chitty on Contracts. 11th Am. Ed., 138, 1076. When the personal representative can fairly and sufficiently execute all that the deceased could have done, he may do so and perform the contract. If the contract entered into by a deceased is of a personal character requiring qualities peculiar to him, as his personal taste or skill, the personal representative is not at liberty to undertake its execution. As to contracts not of a personal nature the administrator may be directed by the Probate Court to perform them or he may upon his own responsibility and risk undertake to do so for the benefit of the estate. Smith v. Wilmington Coal Co., 83 Ill. 498. A mere agency not coupled with an interest is revoked by the death of the principal. Parsons on Contracts, Vol. 1, p. 71, 6th Ed.; Gilbert v. Holmes, 64 Ill. 548-560; Bishop on Contracts, Sec. 1051. In Wylie v. Coxe, 15 Howard, 415, the Supreme Court of the United States held that an agent employed to prosecute a claim against the government of JMexico, for a compensation of five per cent of the amount recovered, having rendered service under such employment, had a lien upon the fund awarded after"the death of his principal and after he had been dismissed by the widow and executrix of the claimant. The court said : “The relation of administrator enabled the defendant to control the case and-dispense with the further services of the complainant; but he had no power to annul the contract, if made bona fide by the complainant and the business had been faithfully prosecuted by him.” ' We do not regard the action of the court in Wylie v. Coxe as inconsistent with that of the same triburial in Hunt v. Rousmanier’s Adm’rs, 8 Wheaton. 174. So far as appears from the record, the proper carrying out of the contract and the benefits to accrue therefrom to the respective parties were not dependent upon the continued existence of Mr. Carbine. If the life of Mr. Carbine was essential to the performance of the contract it was terminated by his death. Under the view entertained by the Circuit Court, the question of damage, if any, which the plaintiff might recover was not considered; we therefore express no opinion as to the proper measure of damages under any of the various conditions which upon another trial may be made to appear. The following authorities throw some light upon the rule as to damages which may be applied in cases of a partial performance of a contract. Duke v. Harper, 8 Mo. App. 296; Moyer v. Cantieny, 41 Minn. 242; Webb v. Trescony, 76 Cal. 621; Shaffner v. Killian, 7 Ill. App. 620; Bunn v. Prather, 21 Ill. 217; Callahan v. Shotwell, 60 Mo. 398; LaBauves v. McCabe, 34 La. Ann. 183; Parsons on Contracts, 6th Ed., Vol. 2, 517-520; Western Union Tel. Co. v. Semmes, 73 Md. 9; Agnew v. Walden, 84 Ala. 502; Am. & Eng. Ency. of Law, 2d Ed., Vol. 1, pages 590, 1115-1116; Vol. 3, p. 427; Sedgwick on Damages, Sec. 672; Hawk v. McCullough, 21 Ill. 217; Mount Hope Cemetery Co. v. Weidenmann, 139 Ill. 67; Ryan v. Dayton, 25 Conn. 188, 193. Appellant is entitled at all events to recover for such services as may have been rendered in the matter of the alleged jury bribing whatever such services were reasonably worth. The judgment of the Circuit Court is reversed and the cause remanded. Opinion per Curiam. A petition for rehearing has been filed in this case, which has been considered by the court as constituted since the original opinion was filed. The opinion has been slightly modified, but the petition for rehearing must be and is denied.