Brigham v. Kidder

• Decision Date: 19 November 1923
• Docket Number: No. 61.,61.
• Citation: 122 A. 740
• Parties: BRIGHAM et al. v. KIDDER.
• Court: New Jersey Supreme Court

122 A. 740

BRIGHAM et al.

v. KIDDER.

No. 61.

Court of Errors and Appeals of New Jersey.

Nov. 19, 1923.

(Syllabus by the Court.)

Appeal from Circuit Court, Essex County.

Suit by Henry M. Brigham and another against Herrick F. Kidder, as executor of the last will and testament of Camillus G. Kidder, deceased. From a judgment for plaintiffs, defendant appeals. Reversed.

Wall, Haight, Carey & Hartpence, of Jersey City, for appellant.

Hooker I. Coggeshall, of New York City, for respondents.

WALKER, Ch. This is an appeal from a judgment entered on a verdict directed for the plaintiffs in the Essex circuit

On February 25, 1919, Camillus G. Kidder, defendant's testator, entered into an agreement and lease with Brigham & Wilson, all parties being New York lawyers. Brigham & Wilson were partners; Mr. Kidder had his separate professional business. The agreement leases two rooms at No. 55 Liberty street, New York, to Mr. Kidder, to be used and occupied by him as law offices, and for no other purpose, Mr. Kidder to have the use in common with the other parties of the outer office of the suite occupied by Brigham & Wilson, they to furnish him the service of a competent stenographer and law clerk to be used in common by all the parties, and telephone service to Mr. Kidder up to 900 local messages a year, for which he was to pay $2,500 per annum in equal monthly payments in advance; the lease not to be assigned or sublet by Mr. Kidder without the consent of Brigham & Wilson. The term ran from April 15, 1919, to May 1, 1923. Mr. Kidder died October 21, 1921. Suit was brought for the balance alleged to be due under the argeement, less some rentals received, thus minimizing damages. The direction for the plaintiffs was unwarranted. In fact, there should have been a direction the other way, if moved for. It was not, counsel for defendant contenting themselves with an exception.

The renting and contract for services herein were incident to the late Mr. Kidder's law business, and entirely personal. The contract did not survive to his personal representative, as he could not practice law in the deceased's place. The business perished with him. If he had intended to bind his estate, he would undoubtedly have included his executors and administrators.

This case is controlled by our decision last term in Brauer v. Hyman, 1 N. J. Adv. R. 712, 121 Atl. 667, wherein we held that there was an implied covenant in a contract to the effect that if performance became...