Martin v. Hunt , 83 Mass. 418 ( 1861 )

Dewey, J.

The measure of damages in the present action is not limited to breaches that may have occurred prior to the death of F. A. Houghton. This was a joint contract, and the decease of one of two joint contractors does not discharge the survivor in a case like the present. There is nothing in the nature of this contract to excuse the defendant from its full performance. There is nothing here stipulated to be performed that cannot be properly performed by the survivor. The death of a single promisor is, in general, no revocation of an agreement. If a purchaser orders goods, and dies before the time of delivery, his executors must receive and pay for the same, although the particular purpose of the purchase was defeated by the death of the purchaser. Wentworth v. Cock, 10 Ad. & El. 42.

There is a well known class of cases where the rule is different, and the death of one of the parties discharges the contract, or excuses its further performance. Such is the case where the engagement is of a strictly personal character, requiring personal skill or capacity; as a contract to write books for a publisher, or a contract by a physician to cure a particular disease, and the like.

In looking at the present contract, we find that the defendant and his associate and joint contractor received from the plaintiff a valuable consideration for their promise, by a conveyance to them of a certain interest in a patent right; and they, in return, promised to employ him for a certain compensation to be paid to him. The decease of Houghton, and the difficulty of continuing their joint operations, may embarrass the surviving contractor, and render it less desirable to continue to perform the contract with the plaintiff. But all that is stipulated to be done may be done by the survivor. He assumed that responsibility as a joint promisor; and neither the insolvency nor the death of his co-promisor can discharge the contract, or release the defendant from the obligation he has assumed. 1 Parsons Con. 111. Chit. Con. 98.

The damages should therefore have been assessed to the date of the writ. Exceptions sustained.