Browne v. Fairhall
| Decision Date | 27 January 1913 |
| Citation | 100 N.E. 556,213 Mass. 290 |
| Parties | BROWNE v. FAIRHALL. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Robt. O. Harris and Wm. A. Morse, both of Boston, for plaintiff.
C. A Sayward, of Ipswich, and Sweeney & Cox, of Lawrence, for defendant.
The first question in this case is whether the cause of action declared on survived the death of John B. Browne, hereinafter called the testator. Perhaps a more exact statement of this question would be whether by reason of the death of the testator the agreement between the original parties became impossible of fulfilment, and whether the parties to the agreement foresaw that this contingency might arise and guarded against it by their stipulations, so that there still may be a remedy upon the contract, even though an exact performance of all its provisions may have become impossible by reason of the death of one party to the agreement.
The agreement was dated July 30, 1908. By its terms the plaintiff agreed to sell to the testator certain stock and bonds of a New York corporation. For these the testator agreed to pay to the plaintiff within 90 days of the agreement the sum of $1,375,000 in cash, and $200,000 in the testator's own promissory notes payable on or before three years after the date of the agreement, bearing interest payable semiannually at the rate of 6 per cent. per year, made payable to the testator's own order and indorsed by him in blank, and to convey to the plaintiff by warranty deed certain described real estate situated in Chicago, Ill., subject to a stated mortgage, with a policy of insurance upon the title, the premium upon which was to be paid by the plaintiff. Besides other stipulations not now material, the parties also agreed that within 90 days from the date of the agreement 'all the moneys, checks, securities, deeds and documents' to be paid or delivered by either one to the other should be delivered in escrow to a trust company named, to be delivered by the trust company to the parties finally entitled thereto by the agreement. The agreement closed with the express stipulation that it should be 'binding upon and inure to the benefit of the respective heirs, executors and administrators' of the parties as to each and all of its provisions, whether so expressed in appropriate words or not. A supplemental instrument annexed to the principal agreement and bearing the same date provided in datail for the deliveries to be made in escrow to the trust company and for the deliveries to be made by that company to each one of the parties respectively.
The testator died on September 10, 1908, before the expiration of the 90 days which have been mentioned, not having (as we understand to be agreed by both parties to the action) made any of the deliveries, and of course being not yet in default by reason of such nondelivery.
This agreement provided in express terms for the performance by the testator of certain acts which could be done only by himself in person. In part payment for the stocks and bonds which he was to buy, he was to give to the plaintiff his own promissory notes for $200,000, drawn payable to his own order and indorsed by himself in blank. These notes, it is plain, were to be drawn in such numbers and for such respective amounts as he should himself see fit, subject only to the requirement that they must together amount to the stipulated sum. They were to be payable at such time or times, within the prescribed limit of three years, as he should elect. The expectation that he might make at least some of them run for a somewhat protracted period is shown by the stipulation that they should bear interest payable semiannually at the rate of six per cent. per year. The notes were to be wholly unsecured, which shows that the personal responsibility of the maker was of weight in the minds of the parties. In the event which has happened, neither party could require the notes of any other person, or any other securities, or even a cash payment, to be substituted for these notes. Neither the testator nor his heirs or executor could be compelled to pay this large sum in any other way than that which had been stipulated for, by the testator's own notes, drawn as he might personally choose to draw them, in the respects which have been mentioned. The plaintiff could not have been required to accept payment of this amount either in money or in any other securities whatsoever; especially he could not have been required to accept notes given by heirs or an executor, with whose responsibility he might not have been content and by whose option in the particulars stated he had not agreed to abide.
Of course the executor in his representative capacity could not bind the estate of the testator by giving such notes in the absence of authority delegated to him by the will. Grafton Nat. Bank v. Wing, 172 Mass. 513, 52 N.E. 1067, 43 L. R. A. 831, 70 Am. St. Rep. 303; Hadlock v. Brooks, 178 Mass. 425, 438, 59 N.E. 1009; Howe v. Richardson, 186 Mass. 259, 71 N.E. 543. But no such power is given by the will of this testator. Even if the plaintiff had consented to receive the notes of the executor instead of those of the testator, which does not appear, yet the executor could not have been required to give his own notes, or indeed any other notes than those specified in the agreement.
It follows that at the time fixed for the performance of the agreement, such performance had become impossible as to a material part of what was to be done by the testator. Without the performance of what thus had become impossible, neither par...
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