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 can not 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 A contract by which A made advances to B to enable B to prepare himself to practice a profession and by the terms of which B was to repay A out of his professional earnings, was held to be discharged by the death of B.4 A contract to support another is discharged by the death of either party to such contract,5 and a contract to render personal services as a servant for the life of the employer is discharged by the death of the servant during the life of the employer.6 A promise by A to B to pay a certain sum if B marries C is not, however, discharged by A's death.7 So a contract for services as an attorney,8 or a consulting engineer,9 or for managing an invention,10 or to engage in managing a brokerage business,11 or a drag store,12 or to act as business manager of a band,13 or not to carry on a business,14 or to sell hemp "of his own raising," 15 have each been held a contract for personal services which was discharged by the death of either party. If a contract is to be performed in part by delivering notes in the future to be executed by one party, the personal credit of such party who is to execute such notes is a material element of the contract, and accordingly his death without executing such notes operates as a discharge of such contract.16 A contract by a pastor to pay an organist personally is discharged by the pastor's death, the church being thereafter closed.17 A contract between the state and an employer of convict labor is discharged by the death of such employer.18 Under a contract for employing a firm of attorneys which requires the services of all the members of the firm, the death of one of the attorneys before complete performance does not operate as an automatic discharge, but it is said to give to the client the election to treat the contract as discharged, or as in force between himself and the surviving partners.11 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.20 The death of a partner discharges contracts of employment so that if no services are rendered thereunder after such partner's death the employe can not recover.21 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.22 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.23 An executory contract to form a partnership is discharged by the death of one of the parties.24
19 Varney v. Cole, 114 Me. 320, 96 Atl. 232.
1 England. Hyde v. Dean of Windsor, Cro. Eliz. 532; Siboni v. Kirkmun, 1 M. & W. 418.
Alabama. Herren v. Harris, - Ala. - 78 So. 921.
Connecticut. Leahy v. Cheney, 90 Conn. 611, L. R. A. 1917D, 809, 98 Atl. 132.
Kansas. Campbell v. Faxon, 73 Kan. 673, 5 L. R. A. (N.S.) 1002, 85 Pac. 760.
Louisiana. Lapleau v. Succession of Lapleau, 144 La. 088, 81 So. 507.
Massachusetts. Marvel v. Phillips, 162 Mass. 399, 44 Am. St. Rep. 370, 26 L. R. A. 416, 38 N. E. 1117; Browne v. Fairhall, 213 Mass. 200, 45 L. R. A. (N.S.) 340, 100 N. E. 556.
Mississippi. Clifton v. Clark, 83 Miss. 446, 102 Am. St. Rep. 458, 36 So. 251.
Nebraska. Homan v. Redick, 07 Neb. 299, L. R. A. 1015C, 601, 140 N. W. 782.
New York. Spalding v. Rosa, 71 N. Y. 40, 27 Am. Rep. 7; Sargent v. Mc-Leod, 200 N. Y. 360, 52 L. R. A. (N.S.) 380, 103 N. E. 164.
North Carolina. Siler v. Gray, S6 N. Car. 566.
Pennsylvania. Sorber v. Masters, -Pa. St. -, 107 Atl. 802.
Rhode Island. Parker v. Macomber,
17 R. I. 674, 16 L. R. A. 858, 24 Atl. 464.
Washington. Mendenhall v. Davis, 52 Wash. 160, 21 L. R. A. (N.S.) 914, 100 Pac. 336.
2 England. Stubbs v. Ry., L. R. 2 Exch. 311; Cocke v. Coleraft, 2 W. Bl. 836.
Alabama. Herren v. Harris, - Ala. -, 78 So. 021.
Connecticut. Leahy v. Cheney, 00 Conn. 611, L. R. A. 1917D, 809, 98 Atl. 132.
Louisiana. Lapleau v. Succession of Lapleau, 144 La. 988, 81 So. 507.
Massachusetts. Marvel v. Phillips, 162 Mass. 399, 44 Am. St. Rep. 370, 26 L. R. A. 416, 38 N. E. 1117; Browne v. Fairhall, 213 Mass. 290, 45 L. R. A. (N.S.) 349, 100 N. E. 556.
Mississippi. Clifton v. Clark, S3 Miss. 446, 102 Am. St. Rep. 458, 36 So. 251.
New York. Sargent v. McLeod, 209 N. Y. 360, 52 L. R. A. (N.S.) 380, 103 N. E. 164.
Pennsylvania. Blakely v. Sousa, 197 Pa. St. 305, 80 Am. St. Rep. 821, 47 Atl. 286.
3 Krumdick v. White, 92 Cal. 143, 28 Pac. 210; Homan v. Redick, 07 Neb. 200, L. R. A. 1015C, 601, 140 N. W. 782; Lacy v. Getman, 110 N. Y. 100, 16 Am. St. Rep. 806, 6 L. R. A. 728, 23 N. E. 452.
4 Lapleau v• Succession of Lapleau,, 144 La. 988, 81 So. 597.
5 Death of party bound to furnish support. Sorber v. Masters, - Pa. St. -, 107 Atl. 802; Parker v. Macomber, 17 R. I. 674, 16 L. R. A. 858, 24 Atl. 464.
Death of a party to be supported. Glidden v. Korter, 90 Me. 269, 38 Atl. 159.
"There are cases, of the same general character as the one before us, where the bargain was considered as merely for maintenance and support, without regard to the essential elements of a home, and therefore not as a personal undertaking on the part of the grantee; but, in these instances, it will be found that either the grantor elected thus to treat the contract or the latter in effect so provided. Here, however, the alleged bargain is between a mother and her two sons for the maintenance of a home by the latter for the former, and, in the making of such a contract, it must be assumed the mother desired to provide for something more than mere shelter and food; that she desired, contemplated, and bargained for the companionship, comfort, personal attention, and affection of her own flesh and blood, and none of the contracting parties intended that the mother, in her old age, should be obliged to live with such strangers to her blood as might acquire the real estate in question. Thus it may be seen that the alleged contract, in this case, calls for something more, of a personal nature, than the mere payment of money for the support and maintenance of plaintiff; and, in addition, it expressly requires the sons to live upon and manage the farms during the whole of their mother's life. Such an undertaking is a distinctly personal one, which terminated with the death of the two boys. Eastman v. Batch elder and Wife, 36 N. H. 141, 150, 72 Am. Dec. 295; Leahy v. Cheney, 90 Conn. 611, 614, 98 Atl. 132, L. R. A. 1917D, 809, note, page 812; Prater v. Prater, 04 S. C. 267, 275, 77 S. E. 936. And see Dickinson v. Calahan's Admrs., 19 Pa. 227; Shirley v. Shirley, 59 Pa. 267, 273; Blakely v. Sousa, 197 Pa. 305, 329, 47 Atl. 286, 80 Am. St. Rep. 821." Sorber v. Masters, - Pa. St. -, 107 Atl. 892.
6 Leahy v. Cheney, 90 Conn. 611, L. R. A. 1917D, 809, 98 Atl. 132.
7 Berisford v. Woodruff, Cro. Jac 404.
8 England. Whitehead v. Lord, 7 Exch. 691.
California. Moyle v. Landers, 78 Cal. 99, 12 Am. St. Rep. 22, 20 Pac. 241.
Illinois. Turnan v. Temke, 84 Ill. 286.
Indiana. Clegg v. Baumberger, 110 Ind. 536, 9 N. E. 700.
Mississippi. Clayton v. Merrett, 52 Miss. 353; Clifton v. Clark, 83 Miss. 446, 102 Am. St. Rep. 458, 36 So. 251.
New York. Sargent v. McLeod, 209 X. Y. 360, 52 L. R. A. (N.S.) 380, 103 N. E. 164.
9 Stubbs v. Ry., L. R. 2 Exch. 311. 10 Marvel v. Phillips, 162 Mass. 399,
44 Am. St. Rep. 370, 26 L. R. A. 416, 38 N. E. 1117.
11 Herren v. Harris, - Ala. -,78 So. 921.
12 Campbell v. Faxon, 73 Kan. 675, 5 L. R. A. (N.S.) 1002, 85 Pac. 760.
13 Blakely v. Sousa, 107 Pa. St. 305, 80 Am. St. Rep. 821, 47 Atl. 286.
14 Cooke v. Colcraft, 2 W. Bl. 856.
15 Shultz v. Johnson, 44 Ky. (5 B. Mon.) 497.
16 Browne v. Fairhall, 213 Mass. 290, 45 L. R. A. (N.S.) 349, 100 N. E. 556.
17 Harrison v. Conlan, 92 Mass. (10 All.) 85.
18 State v. Oliver, 78 Miss. 5, 27 So. 988. Hence the estate and bondsmen of such employer are liable only up to his death.
19 Clifton v. Clark, 83 Miss. 446, 102 Am. St. Rep. 458, 36 So. 251.
20 Martin v. Hunt, 83 Mass. (1 All.) 418.
21 Griggs v. Swift, 82 Ga. 392, 14 Am. St. Rep. 176, 5 L. R. A. 405, 9 S. E. 1062.
22 Hughes v. Gross, 166 Mass. 61, 55 Am. St. Rep. 375, 32 L. R. A. 620, 43 N. E. 1031.
Apart from the question of dissolution by death, the dissolution of a partnership is held in most jurisdictions not to discharge an executory contract to which such partnership was a partner,25 at least as long as such contract is not one in which the personality of the parties thereto is a vital element. A contract of indemnity insurance in which the beneficiary is a partnership, is said not to be discharged as a matter of law by the dissolution of such partnership.26 If the personality of one of the parties is vital, it is generally held that the dissolution of a partnership which is one of the parties to such contract, operates as a discharge thereof.27 Accordingly, a logging contract,28 or a contract by which a partnership agrees to act as an agent,29 is discharged by the dissolution of the partnership which is a party thereto.
A contract by which one agrees to become surety for the performance of an executory contract by a partnership, is said to be discharged by the dissolution of such partnership before performance is complete, at least as to the covenants in such contract which are still executory at the time of the dissolution.30
In some cases it seems to be assumed that the dissolution of a partnership discharges an executory contract, even though the personality of the parties is not material.31 A contract by which a creditor of a partnership was to take charge of certain property and to manage it, was said to be discharged by the dissolution of the partnership, so that the retiring partner could not claim any rights thereunder.32
23 Hughes v. Gross, 1GG Mass. 01, 55 Am. St. Rep. 375, 32 L. R. A. 620, 43 X. E. 1031.
24 Dow v. Bank, 88 Minn. 355, 93 X. W. 121.
25 Cholmondeley v. Clinton, 19 Ves. Jr. 261; Illinois Indemnity Exchange v. Industrial Commission, 280 Ill. 233, 124 N. E. 665; Hughes v. Gross, 166 Mass. 61, 55 Am. St. Rep. 375, 32 L. R. A. 620, 43 N. E. 1031; Dew v. Pearson, 73 Wash. 602, 132 Pac. 412; Bur-dett v. Greer, 63 W. Va. 515, 60 S. E. 497 [sub nomine, Burdett v. Hayman, 16 L. R. A. (N.S.) 1019].
28 Illinois Indemnity Exchange v. Industrial Commission, 289 III. 233, 124 N. E. 005.
27 Taskcr v. Shepherd, 6 IT. & N. 575; Schlau v. Enzcnbacher, 205 III. 626, L. R. A. 1915C. 576. 107 N. E. 107; Roberts v. Kelsey, 38 Mich. 602; Wheaton v. Cadillac Automobile Co., 143 Mich. 21, 106 N. W. 309.
28 Roberts v. Kelsey, 38 Mich. 602.
29 Tasker v. Shepherd, 6 H. & N. 575; Schlau v. Enzenbacher, 265 Ill. 626, L. R. A. 1015C, 576, 107 N. E. 107: Wheaton v. Cadillac Automobile Co., l43 Mich. 21. 106 N. L. 300.
30 Schoonover v. Osborne, 108 Ia. 453, 70 X. W. 263; Black v. Albery, 89 O. S. 240, 106 N. E. 38.