Farnon v. Cole

• Decision Date: 08 March 1968
• Citation: 259 Cal.App.2d 855,66 Cal.Rptr. 673
• Court: California Court of Appeals Court of Appeals
• Parties: Brian FARNON, Plaintiff and Appellant, v. Maria COLE, Executrix of the Estate of Nathaniel Cole, Deceased, Defendant and Respondent. Civ. 30866.

Page 673

66 Cal.Rptr. 673

259 Cal.App.2d 855

Brian FARNON, Plaintiff and Appellant, v. Maria COLE, Executrix of the Estate of Nathaniel Cole, Deceased, Defendant and Respondent.

Civ. 30866.

Court of Appeal, Second District, Division 5, California.

March 8, 1968.

Hearing Denied May 15, 1968.

Volney F. Morin, Hollywood, and Robert B. Lisker, Sherman Oaks, for plaintiff and appellant.

Leo Branton, Jr., Los Angeles, for defendant and respondent.

AISO, Associate Justice pro tem.

The sole question for our determination is whether the death on February 15, 1965, of defendant's testator Nathaniel Cole, more popularly known as 'Nat King Cole,' excused further performance of a written contract between Cole and the plaintiff Brian Farnon wherein Cole agreed to employ Farnon and Farnon agreed to render services to Cole as a musical director for a period of one year commencing August 31, 1964.

The agreement, as set forth in the margin, was entered into on August 10, 1964. ¹ Plaintiff Farnon rendered performance thereunder through January 31, 1965. Cole became ill in December of 1964, was hospitalized on December 8th, and his illness was diagnosed as being caused by cancer. Cole was disabled from thereafter making any public appearances, but payments were made to Farnon pursuant to paragraphs 4b and 4c of the contract to and through January 31, 1965. on February 1, 1965 Cole underwent surgery and on the same date a letter was sent giving plaintiff notice of termination of the contract. Cole died on February 15, 1965, and defendant Maria Cole became the duly appointed, qualified and acting executrix of Cole's estate. On March 31, 1965, plaintiff filed a claim against the estate upon the theory that the contract did not terminate with Cole's death, that paragraph 4f thereof guaranteed $25,000.00 for the term of the agreement, and that deducting the $11,900.00 paid to him through January 31, 1965, there remained due and payable to him the unpaid balance of $13,100.00. Defendant executrix did not act on the claim within ten days of its filing; plaintiff elected to treat the claim as rejected and filed this action against defendant on May 25, 1965.

The trial court, sitting without a jury, found in favor of defendant executrix and against plaintiff on February 2, 1966. The court found 'that as a result of the illness and resulting death of Nathaniel Cole, on February 15, 1965, the contract * * * was terminated by Act of God; that the obligations of the parties thereunder were suspended by operation of law, and there was a complete failure of consideration in connection with the completion of said contract.' Plaintiff appeals from the adverse judgment thereafter entered on February 3, 1966.

We agree with the result reached by the trial court.

Under the rule enunciated by Chief Justice Traynor in Parsons v. Bristol Development Co. (1965) 62 Cal.2d 861, 865, 44 Cal.Rptr. 767, 402 P.2d 839, we proceed to make our independent construction of the contract which is in writing and concerning which the extrinsic evidence is not in conflict.

Where one engages another to render services to him personally for a specified period of time, his death before the end of the agreed time terminates the contract. (Harrison v. Conlan (1865) 10 Allen (92 Mass. 85, 86.) Where the terms of a contract and the surrounding circumstances indicate that each party entering into the agreement relied upon personal skills, talents or characteristics which no one other than the other contracting party could provide, the death of either terminates the contract prior to the termination date set forth in the agreement. (Blakely v. Sousa (1900) 197 Pa. 305, 330--331, 332, 47 A. 286.)

4,5] Where distinctly personal considerations are at the foundation of the contract, the relation of the parties is dissolved by the death of him whose personal qualities constituted the particular inducement to the contract. The whole question in each case is one for construction, and depends upon the intention of the parties. (Citation.) In contracts in which performance depends upon the continued existence of a certain person * * * a condition is implied that the impossibility of performance arising from the perishing of the person * * * shall excuse the performance. The implication arises in spite of the unqualified character of the promissory words, because, from the nature of the contract, it is apparent the parties contracted upon the basis of the continued existence of the particular person * * * (citations.)' (Smith v. Estate of Preston (1897) 170 Ill. 179, 185, 48 N.E. 688, 690, and see Potts Drug Co. v. Benedict (1909) 156 Cal. 322, 332, 104 P. 432, 25 L.R.A.,N.S., 609; cf. Masterson v. Sine (1968) 68 Cal.2d ---, --- ^*, 65 Cal.Rptr. 545, 436 P.2d 561; and Le Rue v. Groezinger (1890) 84 Cal. 281, 285, 24 P. 42.)

Since the contract contains the clause, 'It is further understood and agreed that your (plaintiff's) services are rendered in the capacity of an employee * * *,' the following from 6 Corbin on Contracts (1962) section 1335, page 381 is also pertinent:

'The death of the master or employer does not necessarily have the same effect as the death of the servant. If an essential part of the master's duty is to direct and supervise the work personally, his death makes this impossible. Likewise, it makes performance of the agreed work by the servant impossible, for the work was to be work specified and directed by the master. The master's duty to pay wages does not require his personal performance and has not become impossible; but it is nevertheless discharged, because its condition precedent * * * the rendition of the service * * * has become impossible.'

The wording of the contract explicitly conveys an intent of the parties that the contract be conditioned upon Cole's continued existence and personal participation. No doubt Nat King Cole's artistic skill, talent and renown were inducements to plaintiff to enter into the contract. Plaintiff's services were to be rendered exclusively to Cole personally or to such corporation or company to which Cole would be rendering services, and at such times and places as Cole was to designate. Cole's personal appearance or personal recording was an implied condition precedent to plaintiff's rendition of...