Marvel v. Phillips
| Decision Date | 28 November 1894 |
| Citation | 38 N.E. 1117,162 Mass. 399 |
| Parties | MARVEL v. PHILLIPS et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
J.E. Maynadier and O.R. Mitchell, for appellant.
E.H Bennett and F.S. Hall, for appellees.
The plaintiff, having invented an improvement in conveyors, and an improved elevator, for which he had applied for letters patent, assigned his invention to Phillips, the defendants' testator, taking from him an agreement in writing by which Phillips agreed "(1) to pay all expenses of said applications and of obtaining said letters patent of the United States; (2) to manage the business for the joint benefit of both, to advance all funds requisite but to look to the business for repayment, but to hold full title for the benefit of both until Marvel shall join in a change of title, and to use all reasonable efforts to increase and supply the demand for the Marvel Elevator & Conveyor,--that is, to do all things which a wise and energetic owner of said patents with ample financial ability ought to do." A later provision was as follows "(5) I agree and bind myself and my legal representatives as above, with and to Marvel and his legal representatives." There was a delay in the granting of the patents, one of them not being granted till about two years after the date of the agreement, and Phillips died within seven months after the granting of the last patent. No claim is made on the ground of any breach of agreement by Phillips during his lifetime, but the plaintiff asks to have an order passed for the conveyance of the letters patent to a trustee, who may then seek to enforce against the executors of Phillips the agreement to advance all requisite funds. The executors, on the other hand, have always been ready and willing to reconvey to the plaintiff any interest they might have in the patents, and have, in fact, tendered to him such conveyance; but this the plaintiff does not wish to accept unless the conveyance is made to him as trustee, thus recognizing the existence and continuance of a trust.
Without dwelling upon other objections, we are of opinion that the plaintiff is not entitled to such a conveyance as he seeks because the obligation of Phillips under the agreement was discharged by his death. The chief undertakings were personal in their character. He was to endeavor to create a profitable business under the patents, and to manage it, to advance funds for the repayment of which he was to look solely to the business, to use all reasonable efforts to increase and supply the demand for the elevator and conveyor, and to do all things which a wise and energetic owner of said patents with ample financial ability ought to do. This implies personal skill, attention, and ability of a high order. The amount of money required to be advanced is not stated, but obviously it would be considerable. "Ample financial ability" is called for by the contract. The different parts of the agreement are not separable. Phillips was to advance all funds requisite, but was to look to the business for repayment. Accordingly, it is frankly conceded by the counsel for the plaintiff that, if the duties of Phillips were of such a character that they did not descend to his executors, his obligation to furnish money would not descend. A contract to render such services and to perform such duties is subject to the implied condition that the party shall be alive and well enough in health to perform it. Death or a disability which renders performance impossible discharges the contract. Neither Phillips nor his estate is bound to furnish a substitute, nor is the plaintiff bound to accept one. There are many cases where this doctrine is illustrated, some of which may be cited: Stewart v. Loring, 5 Allen, 306; Harrison v....
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