106 S.E. 489 | N.C. | 1921
Civil action, brought to recover moneys alleged to have been withheld on a logging and sawmilling contract.
On 16 December, 1915, plaintiff's intestate entered into a written contract with the defendant whereby he undertook to cut a certain tract of standing timber and manufacture the same into lumber as per specifications set out in the written agreement — the work to be completed within eighteen months. It was stipulated in the contract that the cutting and sawing of said timber was to be paid for as the work progressed, settlements to be made every two weeks; and the defendant was given the right to reserve and hold back 10 per cent of the amount due on the lumber delivered as a guarantee for the satisfactory fulfillment of the contract.
In August, 1916, plaintiff's intestate was accidentally killed at his sawmill while engaged in carrying out his contract with the defendant. Plaintiff alleges that at the time of the death of the intestate, the defendant had in its hands the sum of $445.22 as moneys reserved on lumber manufactured and delivered up to that date. The defendant answered and alleged that upon a proper accounting between the parties, up to the date of the death of plaintiff's intestate, it would appear that the defendant had made overpayments to the amount of $282.19, and asked for an affirmative judgment against plaintiff for this sum. Later the defendant filed an amended answer, and set up by way of further defense and counterclaim that the defendant had suffered damages in the sum of $1,126.77 as the difference between the contract price and what it cost the defendant over and above that price to have the remainder of the timber cut and manufactured into lumber.
His Honor, being of opinion that the contract was personal to plaintiff's intestate, and that his death relieved his representatives from further fulfillment, and also being of opinion that the fortnightly settlements were binding between the parties, excluded evidence which the defendant proposed to offer on its counterclaims and directed a verdict in favor of the plaintiff. Defendant excepted and appealed. *127 We think his Honor erred in holding, as a matter of law, that the contract in question was personal, and that further performance was not required after the death of plaintiff's intestate.
The general rule is that contracts bind the executor or administrator, though not named therein, and that death does not absolve a man from his engagements. There is an exception, however, to this general rule, equally well established, that in contracts requiring the continued existence of a given person or thing, a condition is implied that the impossibility of fulfillment, arising out of the death of the person or destruction of the thing, shall excuse the performance. Stagg v. Land Co.,
The line of demarcation between a personal contract, which is terminated by death, and one which the personal representatives of the deceased are required to fulfill is not very clearly defined. The reasons for this become obvious and apparent upon a moment's reflection. Two elements which enter into the making of a contract, namely, the intention and understanding of the parties, are not subject to any fixed standard of "weights and measures." They are invisible and intangible things, variable with time and place, and undeterminable by any constant or set formula. Hence, no hard and fast rule can be established for their ascertainment. To be sure, in the broad outlines, certain contracts are not difficult of classification. Those of a strictly personal nature, involving particular personal skill or taste, such as a contract of an author to write a book, an artist to paint a picture, a sculptor to carve a piece of statuary, a singer to give a concert, and a promise to marry, are personal contracts and die with the person. Death makes the performance of such contracts impossible; and, indeed, removes the main object and inducement for the agreement. Executors and administrators are unable to perform such contracts, and the estate of the deceased cannot be held liable in damages by reason of the failure to complete them. Ordinarily, contracts not falling under this exception come under the general rule, and death does not excuse performance. 13 C. J., 643, et seq.
"The true question is whether the contract, properly construed, requires a continuance of the promised action beyond the lifetime of the promisor. It is the same question, and is to be answered in the same way, as if the promisor himself were alive for purposes of being sued, but dead for the purposes of performance." Drummond v. Crane,
On the other hand, the parties, by express terms, may exclude substituted performance. But there is a twilight zone in which, by reason of the ambiguity of some contracts, the intention of the parties must become the determining factor. The facts and circumstances of each particular case should be taken into consideration in determining whether the contract is purely personal in its nature, and therefore terminated by death, or one which the personal representatives can complete as well as the deceased could have done had he lived. As said in Siler v. Gray,
Assuming such to be the law, whether a given case falls under the general rule or the exception must depend upon the intention of the parties; for, at last, it is in every case purely a question of their understanding and agreement. Steamboat Co. v. Transportation Co.,
Viewing the contract between the parties here presented in light of the foregoing principles, we see nothing which would take it out of the general rule. Its terms are clear and unambiguous. It may be performed by the administrator, or he may secure others to do it, as well as the deceased could have done had he not been killed. The parties have agreed unconditionally, and this is the law of contracts voluntarily assumed.Clancy v. Overman,
Of course, where the personal representatives of a deceased are able to do so, and, in good faith, offer to complete the contract, and the other party refuses to accept such offer and declines to permit the personal representatives to proceed, such would relieve them from further performance. They would be entitled, then, to an accounting, and to recover as upon a quantum meruit. Whitlock v. Lumber Co.,
The record discloses no evidence, as offered by the defendant, tending to support its first counterclaim relating to alleged overpayments. In the absence of any evidence to support an allegation, the court would be justified in giving a peremptory instruction. But such evidence, if *129
any, we think, would be competent to show payments made under a misapprehension, or mistake of fact, following the doctrine announced inSimms v. Vick,
With the case going back for a new trial, we refrain from further comment, as we do not care to prejudice the rights of the parties prior to a development of all the evidence.
New trial.
