Howe Sewing-Mach Co. v. Rosensteel

• Decision Date: 04 August 1885
• Citation: 24 F. 583
• Parties: HOWE SEWING-MACHINE CO. v. ROSENSTEEL and others.
• Court: U.S. District Court — Western District of Pennsylvania

24 F. 583

HOWE SEWING-MACHINE CO. v. ROSENSTEEL and others.

United States Circuit Court, W.D. Pennsylvania.

August 4, 1885

S. W Cunningham, for plaintiff.

George C. Wilson, for defendant.

ACHESON J.

Conceding that the relationship between the Howe Sewing-machine Company and T. T. Wherry was not that of principal and agent, it still remains to be determined whether the agreement of February 11, 1884, established between them anything more than a personal relation which the death of the latter dissolved. This is the controlling question. The agreement recites that the company has sold to Wherry 100 Howe sewing-machines for $2,500, and received in settlement his 11 specified notes, running from 6 to 16 months; the company stipulating to accept, on or before the maturity of said notes, the amount due thereon in notes taken in payment for sewing-machines sold by Wherry, on certain conditions, one of which is that the notes so applied shall be drawn to his order, and the prompt payment of the same guarantied by him and the company agrees to ship to Wherry a specified number of the said machines monthly, beginning with February and ending with December, 1884. Then follow these provisions:

'The said T. T. Wherry agrees * * * to sell the said machines at the regular retail prices established by said the Howe Sewing-machine Company in the following territory, viz Indiana, Pa.; and, further, * * * that he will not sell or deal in any other machine but the Howe.'

Wherry died on April 26, 1884, Fifteen of the machines had then been delivered, and they have been paid for. Did the contract, in so far as as it remained wholly executory at the time of Wherry's death, survive against the administratrix of his estate? This is quite unlike the case of Wentworth v Cock, 10 Adol.& E. 42, in which it was held that the vendee's administrator was bound to receive and pay for certain slate, for there the contract was simply an ordinary sale of goods deliverable at stated periods. But here the agreement contemplates and provides for the resale of the sewing-machines by Wherry. In principle our case is much nearer that of Robson v. Drummond, 2 Barn.& Adol. 303, where a contract by a coach-maker to furnish a carriage for five years and keep it in repair, was held to be personal to him, and therefore not assignable by him. How can the administratrix comply with the provisions of this agreement? How is the right to...