Barrett v. Towne

• Decision Date: 26 November 1907
• Citation: 196 Mass. 487,82 N.E. 698
• Parties: BARRETT v. TOWNE et al. WORTHINGTON v. SAME.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

196 Mass. 487

82 N.E. 698

BARRETT

v.TOWNE et al.

WORTHINGTON

v.SAME.

Supreme Judicial Court of Massachusetts, Hampden.

Nov. 26, 1907.

Exceptions from Superior Court, Hampden County; William Schofield, Judge.

Separate actions by Harrison J. Barrett and by one Worthington against Edward S. Towne and others, executors. Findings for plaintiffs, and defendants except. Exceptions in both cases overruled.James B. Carroll and William Hamilton, for plaintiffs.

N. P. Avery, for defendants.

BRALEY, J.

These are actions of contract to recover for disbursements incurred and professional services rendered at the request of the testator in behalf of his brother, who had been jointly indicted with the plaintiff, Barrett, for a conspiracy under the provisions of Rev. St. U. S. § 5440 [U. S. Comp. St. 1901, p. 3676]. At the time Barrett was employed to assist in the defense, the contract into which the parties entered is stated by the auditor in these words: ‘The testator expressed to the plaintiff his desire that on account of his brother's reputation, and his own wish to clear his name, the best possible defense should be made, and as it was impossible for his brother by reason of his physical condition to assist in the preparation, he instructed the plaintiff to undertake the work and he promised and agreed with the plaintiff to pay him one-half of the expenses that might be incurred.’ The contract with the plaintiff, Worthington, who was engaged in the general practice of law at Washington, where the auditor finds that he had achieved a high reputation for professional skill and ability, is equally comprehensive. The testator then said, that ‘he wished to engage his services to defend his brother. * * * He wanted him defended from the beginning to the end, and would leave it to the plaintiff to make the best defense possible; that so far as his brother's defense involved the defense of Barrett, * * * if the trial or trials were upon joint indictments, the plaintiff should take up the defense of the two, and if the trial was of Barrett alone upon a separate * * * indictment, then he assumed no pecuniary responsibility for such defense.’ In reliance upon these respective agreements each plaintiff accordingly devoted himself to the preparation and trial of the case, which took place after the testator's death, and resulted in an acquittal. They are severally barred, however, from recovery, although the actual disbursements made and value of the professional services performed after death comprise in each case very nearly the whole of the claim, if as the defendants assert the performance of the contracts depended upon the continued existence of the life of the testator. In the first case they contend that the promise being strictly personal died with the promisor, while in the second, the relation of attorney and client had been established between the plaintiff and their testator, which also was terminated immediately upon his death. Browne v. McDonald, 129 Mass. 66;Marvell v. Phillips, 162 Mass. 399, 401, 38 N. E. 1117,26 L. R. A. 416, 44 Am. St. Rep. 370;Gleason v. Dodd, 4 Metc. 333, 341.

Undoubtedly, at common law, when not coupled with an interest, the death of the principal revokes the authority of the agent. The agency ceases, because the power to act is dependent upon the control and direction of another, which has been withdrawn by death. Combes Case, 9 Co. 766;Farnum v. Boutelle, 13 Metc. 159;Marlett v. Jackman, 3 Allen, 287, 294;Lincoln v. Emerson, 108 Mass. 87;Brown v. Cushman, 173 Mass. 368, 53 N. E. 860;Bank of New York v. Vanderhorst, 32 N. Y. 553, 555;Long v. Thayer, 150 U. S. 520, 14 Sup. Ct. 189, 37 L. Ed. 1167. Compare Cassiday v. McKenzie, 4 Watts & S. (Pa.) 282, 39 Am. Dec. 76;Ish v. Crane, 8 Ohio St. 520; Id., 13 Ohio St. 574;Dick v. Page, 17 Mo. 234, 57 Am. Dec. 267;Lewis v. Kerr, 17 Iowa, 73;Carriger's Adm'r v. Withington, 26 Mo. 311, 72 Am. Dec. 212;Deweese v. Muff, 57 Neb. 17, 77 N. W. 361,42 L. R. A. 789, 73 Am. St. Rep. 488. If the plaintiffs had died it may be conceded that the contracts would have then terminated, for performance by them depended entirely upon their personal efforts. Marvel v. Phillips, 162 Mass. 399, 38 N. E. 1117,26 L. R. A. 416, 44 Am. St. Rep. 370;Kernochan v. Murray, 111 N. Y. 306, 18 N. E. 868, 2 L. R. A. 183, 7 Am. St. Rep. 744; Campanari v. Woodman, 15 C. B. 400. But as no act was required to be done either by the testator himself, or in his name, a complete performance was possible without any direction or inter vention on his part. If at his own expense he had procured the attendance of a physician to treat his brother until cured of a physical ailment, or had contracted with a grocer to furnish him provisions for a year, there would be great difficulty in saying that in either instance his death during performance ended all further liability because his estate was not bound. Manifestly such a construction instantly would defeat the very object for the accomplishment of which he purposely had obligated himself. In principle the present case must be treated as parallel with the illustration. The various services were neither to be performed, nor was the case to be conducted in his behalf. The guilt or innocence of the decedent was not in issue, but that of his brother with whom Barrett had been joined. They only, were the principals and clients, without whose consent and co-operation the case could not be prepared for trial, and without whose authority counsel could not lawfully appear in their defense. After such appearance, they alone would be bound by the acts and admissions of their attorney made in the course of litigation, and until it was finally closed. Lewis v. Sumner, 13 Metc. 269;Wieland v. White, 109 Mass. 392;Moulton v. Bowker, 115 Mass. 36, 15 Am. Rep. 72;Eliot v. Lawton, 7 Allen, 274, 83 Am. Dec. 683;Stone v. Bank of Commerce, 174 U. S. 412, 422, 19 Sup. Ct. 747, 43 L. Ed. 1028. The employment of the plaintiffs was coextensive with the subject-matter with which the parties dealt, and they were not only engaged to assist in its preparation, but to make ‘the best defense’ of the brother's case. This duty involved securing witnesses and procuring...