Stearns v. Blevins

• Decision Date: 10 March 1928
• Citation: 160 N.E. 417,262 Mass. 577
• Parties: STEARNS et al. v. BLEVINS et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

262 Mass. 577

160 N.E. 417

STEARNS et al.

v.BLEVINS et al.

Supreme Judicial Court of Massachusetts, Suffolk.

March 10, 1928.

Appeal from Superior Court, Suffolk County; James H. Sisk, Judge.

Suit by Harry N. Stearns and others against Albert H. Blevins and others. From the decree, plaintiffs appeal. Affirmed.

R. R. Duncan, of Boston, for appellants.

G. K. Richardson and W. E. Bennett, both of Boston, for appellees.

SANDERSON, J.

This is a bill for an accounting, brought by the administrators with the will annexed of Louis C. Newhall against Albert H. Blevins individually and as one of the trustees of the Arsenal Square Trust, all of whom are defendants. The trial judge made findings of fact in accordance with which a decree was entered ordering the defendant Blevins to pay the plaintiffs the sum of $4,569.34, with interest, and dismissing the bill as to the other defendants; the plaintiffs appealed. The testimony was taken in accordance with the statute.

Newhall died December 26, 1925. He was an architect with an office in Boston, and had been associated as partner with the defendant Blevins. The partnership was dissolved in 1919. About September, 1925, the defendant trustees decided to erect an addition to an apartment house in Cambridge operated by them, and at Blevins' request designated Newhall and Blevins as associate architects to prepare plans and perform the necessary architectural services therefor, their compensation to be six per cent. on the total cost of construction. These architects orally agreed that their relations to each other, the manner and time of payments, should be governed by the schedule of charges computed by the American Institution of Architects, and to share in equal proportions the fees received for such services, except that Newhall was to pay out of his share certain disbursements for engineering services and other assistance. They worked together under this arrangement until a short period before Newhall's death, at which time the plans had not reached the stage of completion, but were more than preliminary sketches, drawings and specifications. Certain tentative contracts had been let on the basis of the preliminary plans, adjustments to be made subsequently with the contractors. According to the schedule of the American Institute referred to, the rule as to the division of architects' fees, the manner and time of payment, appeared to be as follows:

‘One fifth for the preliminary studies and plans; the next two fifths for working drawings when ready to let contracts; the final two fifths for superintendence and for details which have to be got out during the progress of the work, full size details, three quarter scale details, and all work up to the time the building is turned over to the owner.'

The judge found that the trustees under their contract had the right to the joint professional skill and ability of the architects; that by reason of the death of Newhall they were deprived of his professional skill and ability; that the personal representatives of Newhall could not undertake to do his work, nor could they supply an architect to complete his share of the joint professional services which the trustees contracted for; that the agreement between the trustees and Newhall and Blevins was terminated by the death of the former, and the trustees had a right to make a contract with one or more architects to complete the work; that Blevins, by reason of his knowledge of the professional skill and ability of Newhall, made his contract with him in the light of that knowledge; that the death of Newhall terminated the contract between them; that they were not partners in this transaction, but it was a joint professional adventure and, on its termination, Blevins had the right to contract with the trustees to perform the architectural services necessary to complete the plans and supervise the construction of the proposed addition, and that such a contract was made. He also found that Blevins and Newhall were entitled to substantially two-fifths of the total commissions at the time of Newhall's death, to be divided as arranged between them.

If a contract is of ‘such a nature as to admit of only a personal performance, or as to imply that it is to be operative only during the existence of a certain state of affairs, although not so expressed in terms, * * * the contract will be considered dissolved by death or disability, which makes the personal performance impossible, or which destroys the existence of such a state of affairs. A familiar illustration of such a contract is an agreement to paint a picture or write a book.’ Brown v. Cushman, 173 Mass. 368, 371, 53 N. E. 860, 861; Stewart v. Loring, 5 Allen, 306, 81 Am. Dec. 747; Freeman v. Freeman, 136 Mass. 260;Barrett v. Towne, 196 Mass. 487, 489, 82 N. E. 698,13 L. R. A. (N. S.) 643;Browne v. Fairhall, 213 Mass. 290, 100 N. E. 556,45 L. R. A. (N. S.) 349.

The contracts between Blevins and Newhall and between them and the owners were of a personal nature, and both fall within the general classification in which there is an implied condition that the person to render the services shall continue to live. Hawkes v....