75 Miss. 229
Miss.
1897
Whitfield, J.,

delivered the opinion of the court.

The court properly allowed Martin to be substituted for Jones in the replevin suits. Jones’ power to act as administrator ended with his term of office as sheriff, though, as to liability for his acts as administrator, he would still have been amenable. There were not two administrators at one time, but successively, each becoming such under the statute, § 1859, code of 1892. Nor was there any error in overruling the objection that Jones sued as an individual. The suits were by him in his capacity as administrator. But we think the verdict in this case — a most anomalous one — is, in legal effect, a finding for the defendant. It manifestly ascertains a debt of $113.85 due the beneficiary in the trust deed, even under the ruling of the court that a claim for advances made, with which to make the crop after Payne’s death, could not be set up in these suits at law.

It is settled in Dreyfus v. Cage, 62 Miss., 733, that the principle of Bates v. Snider, 59 Miss., 497, does not apply to a case where the creditor-defendant has bonded the property, and he wins. “No alternative judgment,” said the court, “can be awarded in favor of the defendant, for the reason that he is already in possession of the property. The principle announced in Bates v. Snider is applicable only to cases in which a party has rightly recovered a judgment for the possession of property, but has only a limited interest in it for the security of a debt less than its value. . . . The single question to be tried in this case is whether, at the time of the institution of the suit, the plaintiff was entitled to the possession of the property. He was not so entitled if, at that time, any part of the debt secured was unpaid. ’ ’

So here the only proper judgment, the jury finding a debt due Mrs. Cox, was that the defendant retain possession of all *237the property replevied. The trustee would, of course, then deal with it under the terms of the trust deed — sell to pay the debt due, etc. But the court below refused to allow the defendant to show the advances made, under the trust deed, to complete the crop within the limit of $250, and also refused to allow him to show the whole amount of expenses incurred in the necessary completion and preservation of the whole crop, limiting the advances to those made up to Payne’s death, in June, and the expenses so necessarily incurred to those necessary to make and preserve so much only of the crop as would be sufficient to protect the advances of Mrs. Cox up to Payne’s death, and the past advances of $48.50.

This action of the court proceeded upon the view that the contract was strictly a personal one with Payne, did not bind his personal representative, and was, hence, terminated by his death. It is true the contract does not name Payne’s executor, administrator, heirs, or assigns. But says Mr. Freemen, in the note to Chamberlain v. Dunlap, 22 Am. St. Rep., at page 811, the most luminous treatment of the precise question under investigation we have anywhere found, after the most painstaking search: “ It is a general rule of law that contracts bind not only the parties thereto, but also their executors or administrators. The law presumes that the parties to a contract intend to bind their personal representatives even when they are not named in the contract. Contracts are, therefore, generally speaking, enforceable against the personal representatives of deceased parties thereto to the extent of the assets which have come into their hands.” Citing many authorities. And the administrator, having entered upon “the cultivation and completion” of this “growing crop,” under § 1882 of the code of 1892, the proceeds — the necessary expenses being first deducted — were ‘ ‘ assets in his hands. ’ ’ This crop, so far as necessary expenses in cultivating and completing it were concerned, was a primary fund for their payment as privileged claims. Farley v. Hord, 45 Miss., 96. And necessary expenses so in*238curred, since they are for the “common benefit of all,” may be recovered as aprivileged claim, no matter by whom incurred,if he be a party in interest. ” Strauss v. Baley, 58 Miss., pp. 131, 138.

Recurring now to the main question, it is clear that wherever the continued existence of the particular person contracted with —the contract being executory — is essential to the completion of the contract, by reason of his peculiar skill or taste, death terminates the contract; as, for example, ‘ ‘ contracts of authors to write books, of attorneys to render professional services, of physicians to cure particular diseases, of teachers to instruct pupils, and of masters to teach apprentices a trade or calling.” So, also, when the continued existence of a particular thing is essential to the completion of the contract, the destruction of the existence of the thing (its death) terminates the contract — as, in contracts for the sale of specific chattels, or for the use of a building, they ceasing to exist. 1 Beach on the Modern Law of Contracts, sec. 773, p. 946, note 3, with the authorities cited. “But where the contract with the deceased is executory, and the personal representative can fairly and fully execute it as well as the deceased himself would have done, he may do so and enforce the contract. And, on the other hand, the personal representative is bound to complete such a contract, and if he fails to do so, he may be compelled to pay damages out of the assets in his hands. ” Note supra, with authorities, 22 Am. St. Rep., p. 813.

The authorities clearly mark out and sustain these distinctions. Thus, if a purchaser who has ordered goods dies before the time for their delivery, the executor or administrator must receive and pay for the goods, or he will be liable to the extent of the assets in his hands for the damages that may be sustained by reason of the refusal to complete the contract of the deceased. 1 Addison on Contracts, sec. 453; 1 Beach on Modern Law of Contracts, sec. 774, note 4; Martin v. Hunt, 1 Allen, 418; Wentworth v. Cock, 10 Ad. & E., 42; Cooper v. Jarman, L. R., 3 Eq., 98. If a person contracts to build a house for *239another before a certain day, and dies before that day, his personal representative must go on and finish the house. Note supra, 22 Am. St. Rep., p. 812, and authorities. And, in such case, the personal representatives of the builder are bound'to complete his building contracts. Irwin v. Browne, 59 Cal., 37, while see, specially, 1 Beach on Modern Law of Contracts, sec. 231, p. 288, notes 8, 9, 10, with the authorities. And the personal representative of the person for whom the house is to be built must pay for its completion out of the personal estate in the first instance. Note in 22 Am. St. Rep., 812. For many other illustrations, too numerous to set out herein, see 1 Beach on Modern Law of Contracts, secs. 231, 773, 774, and the masterly note of Mr. Freeman to Chamberlain v. Dunlap, 22 Am. St. Rep., pp. 811-815.

We instance but three more: A contract for hiring for a year to do ordinary farm work is not terminated by the employer’s death. 1 Beach on Modern Law Contracts, sec. 774, and note 5. And where a continuing pecuniary obligation is created by a guaranty, the consideration for which is entire and given once for all, the contract is not terminated by the death of the guarantor, unless the intention that it shall so terminate is clearly expressed in the guaranty itself. Note supra, 22 Am. St. Rep., p. 814. And a covenant to be responsible for and guarantee payment of the interest on a mortgage until the mortgaged premises should be so improved as to constitute adequate security for the debt, survives the death of the covenantor. Ib. In all these cases the law implies the intention that, in the one class, the contract shall, and in the other it shall not, be terminated by death. Ib., pp. 811, 812. The parties may, of course, by express terms, agree that the contract shall be strictly a personal one, and thus, by the terms of the contract, exclude substituted performance, and the death of either party would, of course, then terminate the contract. 1 Beach on Modern Law of Contracts, sec. 231, p. 288, and note 11. Silver v. Gray, 86 N. C., pp. 566, 570, an excellent illustrative *240case of the distinction between the two classes of contracts. See, also, Bishop on Contracts, secs. 620, 622; Blond’s Adm’r v. Winstead, 23 Pa. St., 316; Shultz v. Johnson’s Adm’r, 5 B. Monroe, p. 497, showing that, in addition to the considerations above suggested, reference must also be had to the subject-matter of the contract, and that the test, at last, always is, what was the intention of the parties? This last case was properly decided upon the ground that the parties contracting there for hemp of the other party’s own raising,” were buying that particular quality of hemp to sell again.

And, finally, it is well said by Mr. Freeman in the note, supra, that the line of demarkation between the two kinds of contracts is not very clearly marked in some instances, as is shown by a comparison of the case of Dickinson v. Calahan, 19 Pa. St., 227, where a contract to sell all the lumber to be sawed at his mill during five years, the heirs and representatives not being mentioned, was held dissolved by the party’s death, with the subsequent case in 106 Pa. St., 558 (Billings’ appeal), where it was held that a contract for the cutting of timber, not involving expert skill, which did embrace the personal representatives and heirs, did survive. But the obscurity of instances like these does not affect the clearness of the distinction between the two classes of cases marked out by well-considered authorities. In determining whether a contract is a strictly personal one or not, it is doubtless true that, as stated by Mr. Freeman, ‘‘ the facts and circumstances of each particular case will be taken into account.” We refer specially also to the masterly opinion of Judge Peckham in Chamberlin v. Dunlap, 22 Am. St. Rep., 807. If, now, we turn from this review of the authorities elsewhere to our ow A reports, we shall find but two cases bearing on the question — Alsup, Adm’r, v. Banks, 68 Miss., 664, where it was held that the administrator of a lessee of lands for five years, the lessee having died in the first year, was bound to carry out the contract, there being no discussion, however; and, Hill et al., Adm'rs *241of Martin, v. Robeson, 2 Smed. & M., 541, in which it was held that when a planter employed an overseer for one year for three hundred dollars and died in May of the year, and the overseer rendered the services for the whole year, death did not terminate the contract, and the administrators of the planter were bound to pay for all the services rendered, both before and after the employer’s death. This case — like the case cited supra, Martin v. Hunt, 4 Allen, 418, where the personal representative was bound to receive and pay for goods ordered in his lifetime by the deceased, is in principle directly in point; for, if the employer’s administrator is bound to pay the overseer for services rendered after the employer’s death, in making a crop, why is not the farmer’s administrator bound for supplies furnished after the farmer’s death, necessary to make that crop? There is no difference in principle between the cases.

What, now, are the particular facts of this case'? There is nothing in this record to show that Jones, the administrator, could not fully and fairly carry out and complete this contract as well as the deceased could have done. On the contrary, the whole tendency of the evidence is to show not only that he could, but that he did. He retained Payne’s son, on his contract with his father, as agent, and he, in a written order, called on Mrs. Cox to furnish supplies, which she did, to cultivate and complete this growing crop — both manifestly acting under the mutual obligations of the contract, the trust deed. Mrs. Cox had the right, under this contract, to look to the whole crop for security for what she had advanced before Payne’s death, and the correlative right, necessarily, to make the advances and incur the expenses necessary to the preservation, cultivation, and completion of such crop, so as to make it an available security, and she also clearly had the right — and such, manifestly, from the contract, the subject-matter, and the relative situation of the parties, was their clear intention — to make such advances and incur such necessary expenses after his death. We are, therefore, clearly of the opinion that this contract was one *242which was not terminated by Payne’s death, and which, consequently, his personal representative was bound to complete, and that to the extent of the proceeds of such crop, ‘ ‘ necessary expenses being first deducted,” he was liable in these suits to respond. Mrs. Cox had the right to hold the crop, under the contract, for all supplies advanced thereunder, and if any of such -expenses were incurred outside of the contract, she was entitled to them by virtue of the principle that they were incurred of necessity for the “common benefit,” and that, being thus incurred, she had, as to them, on that distinct and independent ground, a prior right of payment out of the crop. Strauss v. Baley, 58 Miss., supra.

Under the view, now settled for us, taken by this court of the exemption law, in Hill v. Franklin, 54 Miss., 632, and Powers v. Sample, 72 Miss., 189, 191, Payne was not entitled to the exemptions claimed.

For the reasons indicated, the judgment is reversed and the cause 'remanded.