Stein v. Bruce, 23675

• Decision Date: 01 April 1963
• Docket Number: No. 23675,23675
• Citation: 366 S.W.2d 732
• Parties: Tillie B. STEIN, Administratrix of the Estate of Oscar Stein, Deceased, Appellant, v. Oscar C. BRUCE and Ruth Y. Bruce, Respondents.
• Court: Missouri Court of Appeals

Page 732

366 S.W.2d 732

Tillie B. STEIN, Administratrix of the Estate of Oscar

Stein, Deceased, Appellant, v. Oscar C. BRUCE and Ruth Y. Bruce, Respondents.

No. 23675.

Kansas City Court of Appeals, Missouri.

April 1, 1963.

Harry T. Limerick, Jr., and James A. McGee, Columbia, for appellant.

George A. Spencer and Roger D. Hines, Columbia, for respondents.

CROSS, Judge.

Plaintiff administratrix appeals from the trial court's order and judgment sustaining defendants' motion to dismiss her petition on the ground that it fails to state a cause of action upon which relief can be granted.

The petition is in two counts. Count one contains allegations to the following effect: Plaintiff is the administratrix of the estate of her deceased husband, Oscar Stein, by authority of appointment made by the Orphans' Court of Philadelphia, Pennsylvania. On or about September 9, 1954, Oscar Stein entered into a real estate sales contract with agents acting on behalf of defendants whereby he agreed to purchase property located in the State of Pennsylvania for the total sum of $19,000.00. The contract provided for a total down payment of $1900.00 and required a final settlement by the payment of the purchase price balance of $17,100.00 on or before December 9, 1954. In so providing, the parties stipulated in the contract that 'Said time is hereby agreed to be the essence of the agreement', and that, 'Should the buyer fail to make settlement as herein provided, the sum or sums paid on account are to be retained by the seller, either on account of the purchase money, or as compensation for the damages and expenses he has been put to in this behalf, as the seller may elect'. The contract also contains the following clause: 'This agreement to extend to and be binding upon the heirs, executors, administrators and assigns of the parties hereto'.

Oscar Stein made the $1900.00 down payment as was agreed but did not pay the purchase price balance on or before December 9, 1954, as the contract provided. Instead, he entered into a supplemental agreement with defendants whereby, in consideration of $1000.00 paid to them, the closing date of the sale was extended to December 31, 1954, and it was agreed 'to arrange for a loan of $6000.00'. Oscar Stein died on December 24, 1954.

Plaintiff further alleges in count one that under the laws of Pennsylvania it was impossible in the ordinary course of administration to have appointed an administratrix for the estate so as to 'close the deal' as agreed by deceased; that plaintiff widow, of Jewish faith, in the observance of a Jewish ritual of mourning, was required to remain in the house seven days after her husband's death; that after letter of administration were granted to plaintiff on January 4, 1955, her attorney's request for an additional extension of time for fulfillment of the contract was refused by defendants; that thereafter plaintiff offered to purchase the property under the contract terms, but learned that it had been sold to another purchaser for $19,000.00; that on January 26, 1955, plaintiff demanded the return of the total sum of $2900.00, and defendants refused to return that sum or any part of it. The prayer of count one is a naked request for judgment against defendants in the sum of $2900.00, with interest, and for costs.

The allegations of count two are identical with those set out in count one except for the addition of one further paragraph to the effect that if there was a breach of the contract because of the buyer's untimely death and the inability of the estate to carry out the contract according to its terms, 'then it would be a penalty and unconscionable' for the defendants to retain the $2900.00 since the property was resold for the same sale price within a short space of time. Count two contains the alternative prayer for judgment, 'if it is determined there was a breach of contract', for return of the $2900.00 paid under the contract(s), less any actual damages sustained by defendants as a result of the contract's breach.

Preliminarily, we deem it appropriate to say of count one that it contains no allegation that defendant breached the contract or that plaintiff was damaged. Plaintiff merely prays for judgment without pleading any specific legal justification therefor. Nonetheless, plaintiff contends that count one states a cause of action, first, on the theory that there was no breach of the contract on her part or by the original vendee. Plaintiff argues that the time for performance of the contract was extended by her husband's death because 'certainly the delay caused by a man dying could not be considered a wilful breach of contract'. Therefore, says plaintiff, she is entitled to the return of the entire $2900.00.

Plaintiff's view of the law in respect to the effect of death of one of the parties to a contract is not in harmony with settled legal principles. It is the general rule that when a person by his contract charges himself with an obligation possible to be performed, he must perform it, unless its performance is rendered impossible by the act of God, by the law, or by the other party. In case a party desires to be excused from performance in the event of contingencies arising, it is his duty to provide therefor in his contract. 17 C.J.S. Contracts Sec. 459, pp. 946-947; Bronstein v. First National Bank of Pittsburg, 30 Pa.Dist.R., 177; Ellis Gray Milling Co. v. Sheppard, 359 Mo. 505, 222 S.W.2d 742. In the last cited case it is stated that 'if a party, by his contract, charge himself with an obligation possible to be performed, he must make it good unless its performance is rendered impossible by act of God, the law, or the other party. Unforeseen difficulties, however great, will not excuse him'.

It may be conceded that, as a general rule, contracts to perform personal acts are considered as made on the implied condition that the party shall be alive and capable of performing the contract, so that death or disability will operate as a discharge. 17 C.J.S. Contracts Sec. 465, p. 957. However, the foregoing rule does not apply where the acts are of such a character that they may as well be performed by others, as by the promisor's personal representatives, or where it is apparent from the terms of the contract that performance by others was contemplated. The death of a party does not excuse nonperformance of a contract embodying a personal right which passes to the personal representatives of the deceased party. 17 C.J.S. Contracts Sec. 465, p. 959; In re Book's Estate, 297 Pa. 543, 147 A. 608; Young v. Gongaware, 275 Pa. 285, 119 A. 271; In re Troutwine's Estate, 117 Pa.Super. 525, 178 A. 302.

The contract in this case did not require Oscar Stein to perform any act of a personal nature. Furthermore, the contract clause reading, 'This agreement is to extend to and be binding upon the heirs, executors, administrators and assigns of the parties hereto', clearly reveals that the parties intended, in the eventuality of either's death, that the agreement would be performed on his behalf by one (or more) of the persons named in the quoted provision. Therefore, it must be held that when Oscar Stein died the contract became binding upon this plaintiff as his successor. The unfortunate death of Mr. Stein did not halt the contract's operation, or nullify its specific provision that 'time (was) to be of the essence'. It was still incumbent upon the administratrix to satisfy the terms of the agreement within the time agreed upon by the original parties.

Plaintiff has exhibited no authority to the effect that the time for performance of a contract may be extended because of the death of a contracting party and the resulting necessity for and delay incident to administration. Purdon's Penna. Statutes Annotated, Title 20, Sections 320.501 and 320.603, cited by plaintiff, do not so provide. Section 320.501 merely provides that a personal representative has the right to take possession of and administer the decedent's estate. The general import of Section 320.603 is that an action to enforce any right or liability which survives a decedent may be brought by or against his personal representative. These provisions are no more than legal declarations of the rights and duties which the parties to the contract provided for by their own agreement. Plaintiff also cites McDaniel v. Rose, Mo.App., 153 S.W.2d 828. The case is not in point. The contract considered there was for personal services to be rendered to the decedent, and the court held that it was unenforcible against the estate after the decedent's death.

We find no merit in the contention above considered.

Plaintiff additionally argues that count one of the petition states a cause of action on the ground that it alleges facts from which it can be found that the sum named in the contract as liquidated damages is unreasonably large, and that it must therefore be considered as a penalty and void. Under such findings, plaintiff insists, she would be entitled to recover of defendants the entire 'down payment' of $2900.00. The contract in question was executed in Pennsylvania and the land was located in that state. All the parties to the contract lived in Pennsylvania. Therefore, our determination of the instant question depends upon whether the down payment in issue is held to be liquidated damages or a penalty under law applicable in the State of Pennsylvania. The issue is a question of law to be resolved by our construction of the contract. 25 C.J.S. Damages Sec. 102, p. 657; Laughlin v. Baltalden, Inc., 191 Pa.Super. 611, 159 A.2d 26.

The term 'liquidated...