This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
A contract whereby the promisor is to perform certain services of a personal nature, and such as cannot be performed by his assignee, or his successors, is discharged by the death, of either party,1 whether of the party who was to perform such services,2 or of the party for whom such services were to be performed.3 Thus a contract to support another,4 is discharged by the death of either party to such contract. A promise by A to B to pay a certain sum if B marries C is not, however, discharged by A's death.5 So a contract for services as an attorney,6 or a consulting engineer,7 or for managing an invention,8 or to act as business manager of a band,9 or not to carry on a business,10 or to sell hemp "of his own raising,"11 have each been held a contract for personal services which was discharged by the death of either party. A contract of agency not creating a power coupled with an interest is terminated by the death of either party.12 Thus authority to sell property,13 as personalty,14 or to collect money,15 is revoked by the death of the principal. In some cases, however, transactions of third persons with agents after the death of the principal, but in ignorance thereof, have been upheld as binding on the principal's estate. Thus payment to an agent,16 or a purchase of goods by him,17 or delivery of notes by him,18 have, contrary to the general rule, been upheld under such circumstances. So a contract to prosecute a claim, which was in part performed after the client's death, has been held not to be discharged.19 Some of the cases, however, which appear to support this proposition really depend upon principles of estoppel. The administrator of the decedent,20 or those who succeed the principal in interest,21 have, with full knowledge of the material facts, elected to accept the benefits of the agent's acts, and are therefore estopped to deny his authority.22 If the agent's power is also coupled with an interest in the subject of the agency, the death of the principal23 does not revoke the power of the agent. What constitutes a power coupled with an interest is a question on which the courts have disagreed. A power of sale in a mortgage to be exercised by the mortgagee has been held in some states to be such a power coupled with an interest that it is not revoked by the death of the mortgagor,24 and the same principle has Reilly been applied to powers of sale in deeds of trust.25 In other states the death of the mortgagor is held to revoke a power of sale in a mortgage.26 A contract by a pastor to pay an organist personally is discharged by the pastor's death, the church being thereafter closed.27 A contract between the state and an employer of convict labor is discharged by the death of such employer.28 A contract of employment between joint employers on the one side and an agent on the other has been held not to be discharged by the death of one of the principals.29 The death of a partner discharges contracts of employment so that if no services are rendered thereunder after such partner's death the employee cannot recover.30 On the other hand, if the surviving partner continues the partnership business and treats the contract of employment as in force, the death of the partner does not as a matter of law work a discharge.31 Thus the firm of A and B had a contract with X for employment for one year which at his option was renewable for another year. Soon after the contract was made A died. B continued the business and treated X's contract as in full force until the end of the first year of X's employment, when on X's demand for a renewal for a second year, B refused. It was held that B was liable to X for breach of such contract.32 An executory contract to form a partnership is discharged by the death of one of the parties.33 v. Phillips, 4 S. D. 604; 57 N. W. 780.
1 Hyde v. Dean of Windsor, Cro. Eliz. 552; Siboni v. Kirkman. 1 M. & W. 418; Marvel v. Phillips. 162 Mass. 399; 44 Am. St. Rep. 370; 26 L. R. A. 416; 38 N. E. 1117; Spalding v. Rosa, 71 N. Y. 40; 27 Am. Rep. 7; Siler v. Gray, 86 N. C. 566; Parker v. Macomber, 17 R. I. 674; 16 L. R. A. 858; 24 Atl. 464.
2Stubbs v. Ry., L. R. 2 Exch. 311; Cooke v. Col craft, 2 W. Bl. 856; Marvel v. Phillips. 162 Mass. 399; 44 Am. St. Rep. 370; 26 L. R. A. 416; 38 N. E. 1117; Blakely v. Sousa, 197 Pa. St. 305; 80 Am. St. Rep. 821; 47 Atl. 286.
3 Krumdick v. White, 92 Cal. 143; 28 Pac. 219; Lacy v. Getman, 119 N. Y. 109; 16 Am. St. Rep. 806; 6 L. R. A. 728; 23 N. E. 452.
4 Death of party bound to furnish support. Parker v. Macomber. 17 R. I. 674; 16 L. R. A. 858; 24 Atl. 464. Death of party to be supported. Glidden v. Korter. 90 Me 269; 38 Atl. 159.
5 Berisford v. Woodroff, Cro. Jac. 404.
6 Whitehead v. Lord, 7 Exch. 691; Moyle v. Landers, 78 Cal. 99; 12 Am. St. Rep. 22; 20 Pac. 241; Tur-nan v. Temke, 84 111. 286; Clegg v. Baumberger, 110 Ind. 536; 9 N. E. 700; Clayton v. Merrett, 52 Miss. 353.
7Stubbs v. Ry., L. R. 2 Exch. 311.
8 Marvel v. Phillips, 162 Mass. 399; 44 Am. St. Rep. 370; 26 L. R. A. 416; 38 N. E. 1117.
9 Blakely v. Sousa, 197 Pa. St. 305; 80 Am. St. Rep. 821; 47 Atl. 286.
10 Cooke v. Colcraft. 2 W. Bl. 856.
11 Shultz v. Johnson, 5 B. Mon. (Ky.) 497.
12 Howe Sewing Machine Co. v. Rosensteel, 24 Fed. 583; Adriance v. Rutherford, 57 Mich. 170; 23 N. W. 718; McDonald v. Black. 20 Ohio 135; 55 Am. Dec. 448.
13 Hunt v. Rousmanier, 8 Wheat. (U. S.) 174; Scruggs v. Driver, 31 Ala. 274; Harris v. Irving, 28 Cal. 645; Travers v. Crane. 15 Cal. 12; Lewis v. Kerr, 17 la. 73.
14 Dickinson v. Calahan, 19 Pa. St. 227.
15 Weber v. Bridgman, 113 N. Y. 600; 21 N. C. 985; Davis v. Bank, 46 Vt. 728.
16 Cassiday v. McKenzie, 4 Watts & S. (Pa.) 282; 39 Am. Dec. 76.
17 Davis v. Davis, 93 Ala. 173; 9 So. 736; Garrett v. Trabue, 82 Ala. 227; 3 So. 149.
18 Nicolet v. Pillot, 24 Wend. (N. Y.) 240.
19 Wylie v. Coxe, 15 How. (U. S.) 415.
20 Succession of Zenon & Elise La-bauve, 34 La. Ann. 1187.
21 Ish v. Crane, 8 O. S. 520; s. c, 13 O. S. 574.
22 See Sec. 968.
23 Gordon v. Stubbs, 36 La. Ann. 625; Merry v. Lynch, 68 Me. 94; White v. Allen, 133 Mass. 423; Knapp v. Alvord, 10 Paige (X. Y.) 205; 40 Am. Dec. 241.
24 Hudgins v. Morrow, 47 Ark. 515; 2 S. W. 104; Strother v. Law, 54 111. 413; Barrick v. Horner, 78 Md. 253; 44 Am. St. Rep. 283; 27 Atl. 1111; Conners v. Holland, 113 Mass. 50; Beatie v. Butlor. 21 Mo. 313; 64 Am. Dec. 234: Carter v. Slocomb, 122 N. C. 475; 65 Am. St. Rep. 714; 29 N. E. 720;
25 Hodges v. Gill, 9 Baxt. (Term.) 378; Wilburn v. Spofford, 4 Sneed (Tenn.) 608.
26 Wilkins v. McGehee, 86 Ga. 764; 13 S. E. 84; Miller v. McDonald, 72 Ga. 20; Johnson v. Johnson, 27 S. C. 309; 13 Am. St. Rep. 636; 3 S. E. 606; Buchanan v. Monroe, 22 Tex. 537.
27 Harrison v. Conlan, 10 All. (Mass.) 85.
28 State v. Oliver, 78 Miss. 5; 27 So. 988. Henee the estate and bondsmen of such employer are liable only up to his death.
29 Martin v. Hunt, J All. (Mass.) 418.
30 Griggs v. Swift, 82 Ga. 392; 14 Am. St. Rep. 176; 5 L. R. A. 405; 9 S. E. 1062.
31 Hughes v. Gross, 166 Mass. 61; 55 Am. St. Rep. 375; 32 L. R. A. 620; 43 X. E. 1031.
32 Hughes v. Gross, 166 Mass. 61; 55 Am. St. Rep. 375; 32 L. R. A. 620; 43 N. E. 1031.
33 Dow v. Bank, 88 Minn. 355; 93 N. W. 121.