Brown v. Cushman
| Decision Date | 18 May 1899 |
| Citation | 53 N.E. 860,173 Mass. 368 |
| Parties | BROWN v. CUSHMAN et al. CUSHMAN et al. v. BROWN. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
G.C. Abbott, for Geo. W. Brown.
Chas F. Choate, Jr., for W.C. Cushman.
The first case is an action of tort for the conversion of certain gelatine, and the second is an action for an alleged breach of contract. They were tried together in the superior court before a judge sitting without a jury, who made certain findings of fact, declined in each case to rule that the contract out of which the litigation arises was not terminated by the death of William H. Brown, and declined also to rule in the action of tort that upon the evidence the plaintiff could not recover, and, having declined so to to rule, found for Brown in each case.
The first question is whether the contract is terminated by the death of William H. Brown. The contract is as follows "We, the undersigned, William H. Brown, of Peabody, state of Massachusetts, manufacturer of gelatine and Cushman Bros., of the city of New York, manufacturers' and packers' agents, hereby mutually agree as follows: Cushman Bros. agree to use their best energy in pushing the sale of William H. Brown's Sunlight Flaked Gelatine throughout the United States, either personally or through approved representatives. After the gelatine is landed in Cushman Bros.' store, they agree to make no charge to William H. Brown, of any nature, for selling, delivering, billing, collecting, etc., except the one charge of a commission of twenty-five (25%) per cent. on all sales (except as hereinafter provided in the cities of New York and Brooklyn). Not to sell any other gelatine than that manufactured by William H. Brown. William H. Brown hereby appoints Cushman Bros. his sole agents for the United States for his Sunlight Flaked Gelatine, for five years from the first day of May, 1893, and agrees to pay Cushman Bros. therefor a commission of twenty-five (25%) per cent. on all sales made, either directly or indirectly, in the United States (except as hereinafter provided in the cities of New York and Brooklyn). For New York and Brooklyn, William H. Brown agrees to pay Cushman Bros., in lieu of the twenty-five (25%) per cent. commission, a salary of fifteen ($15.00) dollars per week and twelve and one-half (12)1/2%) per cent. commission, payable at the end of each and every month during the said time. For this territory William H. Brown also agrees to pay Cushman Bros. two per centum for collecting, where the services of a collector are required. On all business transactions in the foregoing arrangements, there is to be no charge for deliveries, but Cushman Bros. are to receive fifteen cents a case for cartage from the wharf to their store on all goods shipped to them by William H. Brown. The wholesale selling price is not to exceed $10.80 per gross, less 15%. [ Signed] William H. Brown. Cushman Bros. Dated the 20th day of April, 1893. It is further agreed that Cushman Bros. shall render to W.H. Brown every four months a list of all accounts overdue for final settlement. Accounts that are uncollectible shall be written off, and others shall be carried forward or goods returned. Cushman Bros., per Fear. William H. Brown."
Without doubt the general rule is that, in the absence of express words, the parties to a contract intend to bind their personal representatives as well as themselves, even although the contract may require years for its performance, as in the case of an ordinary promissory note, whether payable by installments or otherwise, or in case of an agreement to buy receive, and pay for certain property at stated times ( Drummond v. Crane, 159 Mass. 577, 35 N.E. 90), or to build a house or a ship, or to guaranty payments of certain dividends on stocks (Kernochan v. Murray, 111 N.Y. 306, 18 N.E. 868; Drummond v. Crane, supra). On the other hand, a contract may be of such a nature as to admit of only a personal performance, or as to imply that it is to be operative only during the existence of a certain state of affairs, although not so expressed in terms; and in such case the contract will be considered dissolved by death or disability, which makes the personal performance impossible, or which destroys the existence of such a state...
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