Dickinson v. Calahan's Administrators

• Decision Date: 28 September 1852
• Citation: 19 Pa. 227
• Parties: Dickinson <I>versus</I> Calahan's Administrators.
• Court: Pennsylvania Supreme Court

19 Pa. 227

Dickinson versus Calahan's Administrators.

Supreme Court of Pennsylvania.

September 28, 1852.

ERROR to the Common Pleas of Lycoming county.

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J. Armstrong and W. H. Armstrong, for the plaintiffs in error. —The answer to the first point was erroneous, as it left the jury to infer, that unless Calahan actually disabled himself from a compliance with his contract, his administrators would not be answerable for its violation after his death. The Court treated the contract as a personal executory contract, dying with the parties. In this, it was alleged, there was error.

The Court should have charged that the contract survived as to the administrators, and that they were bound to perform, or the estate was answerable in damages: Toller on Exrs. 158, 431; 2 Bl. Com. 302; Chit. on Con. 98; Story on Con. 215, sec. 275-6; 2 Pa. Rep. 130-1; 16 Ser. & R. 301.

The answer to the 5th point, it was alleged, erroneously confined the jury to the damages, if any, which were sustained in the lifetime of Dickinson.

Maynard and Willard, for the defendants in error.

The opinion of the Court, filed September 28, was delivered by LOWRIE, J.

It seems to us very doubtful whether the oral contract could be rightly proved by the evidence that was submitted to the jury. But admit that it could. The one party, a lumber manufacturer, agreed to sell to the other, a lumber merchant, all the lumber to be sawed at his mill during five years, and that the quantity should be equal on an average to 300,000 feet in a year, without stipulating for any given quantity in any one year, and the lumber was to be paid for as delivered. Before the five years had expired, both parties died; and now the representatives of the vendee seek to hold those of the vendor bound to perform the contract, and to set off damages for the breach of it against a claim for part of the lumber delivered.

It will be seen that, in thus stating the question, we set aside the alleged breach in the lifetime of Calahan; and we do this because the Court properly instructed the jury that, under such a contract, Calahan was guilty of no breach in not manufacturing the full average quantity in his lifetime, and left it to them to say whether in his lifetime he had committed any other manner of breach. The point in controversy may be stated thus: — Where a lumber manufacturer contracts with a lumber merchant to sell him a certain quantity of lumber, to be made at his mill during five years, for which he is to be paid as the lumber is delivered, and he dies before the time has elapsed, are his administrators bound to fulfil the contract for the remainder of the time?

No one can trace up this branch of the law very far without becoming entangled in a thicket, from which he will have difficulty in extricating himself. Very much of the embarrassment arises from the fact that the liability of executors and administrators has been often made to depend more upon the forms of action than upon the essential relations of the parties, as will be seen by reference to the books: Platt on Covenants 453; 2 Wms. Executors 1060; Viner's Ab. titles "Covenants" D. E., and "Executors" H. a.; Touchstone 178. The simplicity and symmetry of the law would certainly be greatly increased, and its justice better appreciated if in all cases where the law undertakes the administration of estates, as in cases of insolvency, bankruptcy, lunacy, and death, the rules of distribution were the same.

The contract in this case, established a defined relation, a relation depending for its origin and extent upon the intention of the parties. The question is, do the administrators of a deceased party succeed to that relation after the death of the party, or was it dissolved by that event? On this question the books give us an uncertain light. In Hyde v. Windsor, Cro. Eliz. 552, it is said that an agreement to be performed by the person of the testator, and which his executor cannot perform, does not survive. But here the uncertainty remains, for the acts which an executor cannot perform are undefined. It recognises the principle, however, that an executor does not fully succeed to the contract relations of his testator.

The case of Robson v. Drummond, 2 Barn. & Ald. 303, 22 Eng. C. L. Rep. 81, is more specific; for in that case it was held that an agreement by a coachmaker to furnish a carriage for five years and keep it in repair, was personal, and could not be assigned and executors and administrators are assigns in law; (Hob. 9; Cro. Eliz. 757; Latch 261; Wentw. Executors 100;) that being a general term, applying to almost all owners of property or claims, whether their title be derived by act of law, or of the parties. And it is no objection that one may take as executor or administrator in certain cases where the English laws of maintenance and forms of action would not allow him to take as assignee in fact, for those laws do not extend to such a case, and they have no application here.

In Quick v. Ludborrow, 3 Bulst. 29, it is said that executors are bound to perform their testator's contract to build a house, but the contrary is said in Wentw. Executors 124, Vin. Ab. "Covenant," E. pl. 12, to have been declared in Hyde v. Windsor, though we do not find it in the regular reports of the case: 5 Co. 24; Cro. Eliz. 552. But these are both mere dicta. The same principle is repeated in Touchstone 178, yet even there a lessee's agreement to repair is not so construed; and in Latch Rep. 261, the liability of executors on a contract to build, is for a breach in the testator's lifetime. In Cook v. Colcroft, 2 Bl. Rep. 856, a covenant not to exercise a particular trade was held to establish a mere personal relation and not to bind executors; and the contrary is held in Hill v. Hawes, Vin. Ab. title "Executors," Y. pl. 4. And so executors and administrators stand on the same footing with assignees in fact with regard to apprentices; and contracts of this nature are held not to pass to either, because they constitute a mere personal relation, and are, therefore, not transferable: 2 Stra. 1266; 4 Ser. & R. 109; 1 M. 172; 19 Johns. 113; 1 Rob. 519; 12 M. 553, 650; 5 Co. 97.

The case most nearly resembling this is Wentworth v. Cock, 10 Ad. & El. 42, 37 Eng. C. L. R. 33, where a contract to deliver a certain quantity of slate, at stated periods, was held to bind the executors. This case was decided without deliberation, and with but little argument on the part of the executors. The plaintiff relied on the case of Walker v. Hull, 1 Lev. 177, where executors were held bound to supply the place of the testator in teaching an apprentice his trade. But that case had long ago been denied in England: 2 Stra. 1266, and is rejected here: Commonwealth v. King, 4 Ser. & R. 109. This last case treats the contract as a mere personal one, that is dissolved by death, and regards as absurd the doctrine in Wadsworth v. Gay, 1 Keb. 820, and 1 Sid. 216, that the executors are bound to maintain the apprentice, while he is...