196 Mass. 487 | Mass. | 1907
These are actions of contract to recover for disbursements incurred and professional services rendered at the request of the testator in behalf of his brother, who had been jointly indicted with the plaintiff Barrett for a conspiracy under the provisions of TJ. S. Rev. Sts. § 5440. The contract into which the parties entered at the time Barrett was employed to assist in the defence is stated by the auditor in these words: “ The testator expressed to the plaintiff his desire that on account of his brother’s reputation and his own wish to clear his name the best possible defence should be made, and as it was impossible for his brother, by reason of his physical condition, to assist in the preparation, he instructed -the plaintiff to undertake that work, and he promised and agreed with the plaintiff to pay him one half of the expenses that might be incurred.” The contract with the plaintiff Worthington, who was engaged in the general practice of law at Washington, where the auditor finds that he had achieved a high reputation for professional skill and ability, is equally comprehensive. To him the testator said, that
Undoubtedly, at common law, when not coupled with an interest, the death of the principal revokes the authority of the agent. The agency ceases, because the power to act is dependent upon the control and direction of another, which has been withdrawn by death. Combes’s case, 9 Co. 75a. Farnum v. Boutelle, 13 Met. 159. Marlett v. Jackman, 3 Allen, 287, 294. Lincoln v. Emerson, 108 Mass. 87. Brown v. Cushman, 135 Mass. 368. Bank of New York v. Vanderhorst, 32 N. Y. 553, 555. Long v. Thayer, 150 U. S. 520. Compare Cassiday v. M’Kenzie, 4 Watts & S. 282; Ish v. Crane, 8 Ohio St. 520; S. C. 13 Ohio St. 574; Dick v. Page, 17 Mo. 234; Lewis v. Kerr, 17 Iowa, 73; Carriger v. Withington, 26 Mo. 311; Deweese v. Muff, 57 Neb. 17. If the plaintiffs had died it may be conceded that the contracts would have then terminated, for performance by them depended entirely upon their personal efforts. Marvel v. Phillips, 162 Mass. 399. Kernochan v. Murray, 111
Nor was this obligation discharged by the conversation between the plaintiff and one of the executors before any indebtedness on the items in the first case had been incurred. In response to a verbal notice then given, that they would not recognize any liability for further outlays unless specifically authorized, the plaintiff asserted his intention to proceed under the contract. The immediate reply, that “ whatever agreement ” the testator “ made in his lifetime would of course be carried out,” must be treated as an assent to conform to its terms.
In the first case, the second, seventh and eighth requests for
Exceptions in both cases overruled-