49 Mo. App. 654 | Mo. Ct. App. | 1892
Harris Forsythe died testate in Lawrence county on the first day of April, 1887. The defendants, having been named as executors in the will, duly qualified as such, and took upon themselves the administration of the estate. The plaintiff presented to the probate court a demand which he asked to be allowed against the estate. The claim was for the value of certain corn claimed by the plaintiff, which he alleged had been taken by the defendant’s agent in the years 1887 and 1888, and by him fed to stock belonging to said estate. Both the probate and circuit ■ courts rejected the demand, and the plaintiff has brought the case here by appeal.
The facts, upon which the plaintiff rests the right to have his claim allowed and paid out of the assets of the estate, may be thus briefly stated: It was claimed by [him that, about one year prior to the death of Forsythe, he (Forsythe) entered into a written con
The questions to be answered on this record depend upon the construction of the written contract between Forsythe and Price. If by its terms Price was constituted the agent of Forsythe with authority merely to buy stock and the necessary feed for them, and Price was only interested in the profits, then the contract terminated with the death of Forsythe. Hunt v. Rousmanier, 8 Wheat. 174. ‘The same result would, follow if the contract established a copartnership. In. either case, if a subsequent arrangement was made-between Price and the executors for a continuation of the business by which debts were contracted, Price and. the executors as individuals might be held for such debts, but not the estate. But, on the other hand, ifPrice’s agency was coupled with an interest in the subject-matter of the business, then the contract survived,, and Price had the right to carry it out; and, if the executors had refused to furnish the necessary money for’ its execution, then he would have been entitled to a, judgment against the estate for damages.for its breach. The contract is as follows:
“State of Missouri, j “County of Lawrence. J
11 Know all men by these presents: That I, H. Forsythe, of the first part, and Joseph Price, of the second part, enter into this agreement: First, that I, H. Forsythe, of the first part, do (sic) agree to furnish to. Joseph Price, of the second part, my entire farm, consisting of three hundred and ninety acres, it to be-turned over in good repair to said Price, and he to take.*658 said farm and furnish teams to run same; also to he at all expense of running’ said farm, and keeping same in good repair at his expense. And H. Forsythe, of the first part, is to furnish money to buy young mules, from forty to sixty each year, as both parties may deem proper, to be kept on said farm; also any other stock that we may want on said farm. And said Price shall have for his services as manager of said farm one-half the profits coming out of stock kept on said farm, when sold, after the said purchase money has all been deducted from sales off of said farm, the labor in cultivating said farm and buying stock for said farm to all be done by party of the'second part, at his expense. The jack Alfonso, and horse Tuckaho, to be owned by Forsythe and'Price, the profits to be divided equally at end of each year.
“The said Joseph Price to give his exclusive attention to said farm and stock, signed Jhis first day of April, 1886.
“In addition to the above, business shall run at least three years, and as much longer as both parties may agree.
“Signed this twenty-third day of April, 1886.
“H. Fobsythe,
“J. S. Pbice.”
“One day after date I promise to pay H. Forsythe $493, value received, interest ten per cent, from date.
“J. S. Pbice.”
The foregoing contract and note were written with a lead pencil on the same paper, and on the margin of the paper against the note is written in ink the following, to-wit: “Paid March 9, 1889.”
Was Price’s agency of such a character as to survive or continue after the death of Forsythe? Chief Justice Marshall, in Hunt v. Rousmanier, 8 Wheat. 174, 203, explained what was meant by the phrase, a
The proper interpretation of the contract before us, as applicable to the rights of the present litigants, is by no means free of difficulty. It may be safely said, we think, that under the decisions in this state there was, strictly speaking, no partnership between Forsythe and Price. Donnell v. Harshe, 67 Mo. 170; Musser v. Brink, 68 Mo. 242; Newberger v. Friede, 23 Mo. App.
•In the case of Yerrington v. Greene, 7 R. I. 589, the deceased, who was a manufacturer of jewelry, employed the plaintiff for a period of three years to take charge of the branch office of the deceased in the city of New York at a stated annual salary. The deceased died during the time. His executors closed out the business in New York, and the plaintiff brought his action for damages against the estate for a breach of the contract. The court, after stating the general rule that unexecuted contracts are not rescinded by the death of one of the contracting parties, but according
The case of Dickinson v. Callahan, 19 Pa. St. 227, discusses the same principle. There A agreed to sell to B all lumber sawed at his mill during five years, the quantity to be equal to an average of three hundred thousand feet annually. Both parties to the contract died before the expiration of the time. The representatives of B sought in the action to hold the represen-. tatives of A for damages for failure to perform the contract. The supreme court of Pennsylvania, in discussing this alleged liability, said: “Does such a contract establish anything more than a personal relation between the parties? This is a mere question of construction, depending upon the intention of the
Neither one of the cases cited is like the one before us as to its controlling facts, but the discussion in each of the opinions throws some light on the question which is troubling us; that is, whether, from the nature of the contract and its terms, the parties contemplated that Price’s agency should be revoked in case of the death of Forsythe. If they did, then the judgment of the circuit court was right, because, if the agency terminated with the death of Forsythe, Price could not bind his estate. It will be observed that the intention of the contracting parties in each individual case must control, if it is such as the law will enforce-. In the Dickinson case, the court held as a matter of construction that the contract created merely a personal relation, and that it necessarily ceased with the death of A. This conclusion was reached upon the theory, that each delivery of lumber was a complete act within itself,
Do these arguments obtain in the case before us? In a measure they do, but not to the extent which would lead us to a similar conclusion. The business contemplated by Forsythe and Price was the purchase and sale of young mules and other live stock. Forsythe was to furnish the money, and Price was to buy, feed and sell the stock, and also to cultivate the farm at his own expense. Our common experience teaches us that the profitable prosecution of such a business requires time. The profit is in the growth of the stock. Therefore, it is not reasonable to suppose that Price would have entered into such a contract, if it was intended by the parties that the business should terminate if Forsythe should die. Price in all probability expended a good deal of money in making preparations to carry on a farm of four or five hundred acres for three years, and he could not have ,reasonably expected to receive any profits short of the limitation fixed by the contract. To this extent the reasoning of the Dickinson case is inapplicable.
But it will be observed that, beyond a certain number of mules to be purchased, or other live stock, it required the exercise of the mutual judgment of the parties, not in making the purchase but in determining whether the additional stock should be bought. The question, therefore, presents itself, whether the exercise of such judgment was incompatible with the duties of Forsythe’s executors. We think there is a good deal of
We, therefore, conclude that Price’s agency survived, and, as there was no legal obstacle in the way of the enforcement of the contract by Forsythe’s executors, and as they elected to and did carry it out, all acts of Price, within the scope of the business, bound the estate. Under this view the court committed error in excluding the plaintiff’s evidence. If Price fed the plaintiff’s corn to stock belonging to himself and the estate, then the plaintiff is entitled to an allowance for its reasonable value, unless the plaintiff acted in such a way in reference to the corn as to estop him from insisting on payment. There is some evidence looking in that direction.
With the concurrence of the other judges, the judgment of the circuit court will be reversed and the cause remanded. It is so ordered.