Blakely v. Sousa , 197 Pa. 305 ( 1900 )

Opinion by

Mb. Justice Bbown,

Neither the complainant nor the respondent is satisfied with the decree made in the court below. Each has appealed from it, the former complaining that it gives her too little, and the latter asserting that she gets too much. The appeal oE the complainant, though taken later than that of the respondent, will be first considered, as it raises the most important questions to be disposed of.

The contract out of which this controversy arose was in writing, having been executed by the parties to it on June 27,1892, and the obligations assumed by each were to extend through a period of five years from August 1, 1892. Before the expiration of this period, David Blakely, one of the contracting parties, died, and the first and most important question is as to the effect of his death upon the agreement. His personal representative insists that the contract was unaffected by his death; that, as his substitute in it, she has succeeded to all his rights under it, and can compel full performance by Sousa, the survivor. The latter, however, contends that personal services to be rendered by the deceased, who possessed peculiar ability and qualifications, were the inducements that led him to enter into the contract, and that the relations established by it were dissolved by the death of him whose personal qualities had so induced him. The effect of the death of a party to a contract whose distinctly personal services, involving peculiar skill and experience, are at the foundation of it, in the absence of any provision that the survivor must accept performance by the personal representative of the deceased, is not in doubt. This is settled by reason, and authorities are not wanting in support of it. “All contracts must be construed with reference to their subject-matter, and a contract defining an existing relation can have no operation when that relation ceases, for its foundation is gone: ” Bland’s Administrator v. Umstead, 23 Pa. 316. “ The general doctrine on this point was very thor-

oughly examined and discussed by my Brother Lowuns, J., in Dickinson v. Calahan’s Administrators, 7 Harris, 227. The conclusion arrived at there seems to be, that, if the contract of a decedent be personal, and the performance of the deceased himself be the essence thereof, his executors will not be liable, excepting only so far as the contract was broken during his lifetime ; and the instance is given of a contract to impart artistic or mechanical skill and information. Such a contract could not devolve on the representatives of the deceased, for, as it was there said, ‘we cannot suppose that the deceased was contracting for any kind of skill in his administrators : ’ ” White’s Executors v. Commonwealth, 39 Pa. 175. “ Where the agreement is for services which involve the peculiar skill of an expert, by whom alone the particular work in contemplation of the parties can be performed, or, more generally, where distinctly personal considerations are at the foundation of the contract, the relation of the parties is dissolved by the death of him whose personal qualities constituted the particular inducement to the contract: ” Billings’s Appeal, 106 Pa. 558. “ A contract to render such services and perform such duties is subject to the implied condition that the party shall be alive and well enough in health to perform it. Death or a disability, which renders performance impossible, discharges the contract: ” Marvel v. Phillips, 162 Mass. 399. The duty of the survivor to a contract of a strictly personal nature to perform his covenants terminates with the death of the other party to it, for the reason that neither of the contracting parties contemplated at-temped performance by a substitute. Where distinctly personal services, requiring peculiar skill, are to be rendered by each of the contracting parties as inducements to the contract, there is mutuality, and the death of either of the parties is the death of the contract. In such a case, the personal representative of the deceased cannot call upon the survivor to perform, and the latter cannot require the obligations to him to be assumed and discharged by another.

Turning to the contract before us, what was its nature and what effect did the death of Blakely have upon it ? On its face it sets forth a combination of the business ability of Blakely with the musical talent of Sousa for mutual profit. In its very first lines, the purpose of the agreement appears to be the formation of a musical organization of high excellence, the manager of the same to be David Blakely, who had been “ the manager of the late tours of the U. S. Marine Band,” and the musical director, John Philip Sousa. Each of the parties to the contract understood the personal qualities of the other and manifestly regarded them as the inducements to it. Without the business qualities, ability and experience of Blakely, or the musical skill of Sousa, the organization, to be known under the contract as “ Sousa’s Band,” would not have been formed. We find this where we ought to find it, within the contract itself. We there find that David Blakely, styling himself “ the manager of the late tours of the U. S. Marine Band,” was “ desirous of perfecting a new organization, for the purpose of securing high excellence in a military band, and, with that view, to secure the services of John Philip Sousa as its musical director,” who was willing “ on the terms set forth in the contract,” to accept the position. The ninth clause of the agreement provides : “ The musical direction of the aforesaid organization shall be in the hands of the said John Philip Sousa, and the business management in the hands of said Blakely, as aforesaid, but both shall mutually receive counsel in their respective positions, and especially regarding the preparation of programmes.” The fifteenth clause is as follows : “ It is agreed that both parties to this agreement shall do all that within them lies to make the enterprise herein contemplated a success, both musically and financially; and, in general, they shall both spare no pains to forward the interests of the business connected directly or indirectly therewith.” Nowhere does it appear that either of the contracting parties contemplated the services of any one else. They, and they alone, by the combination of their own personal qualifications, were to strive for the success of the enterprise. Having understood that each relied upon the peculiar qualities of the other, neither bound his executors or administrators, for the death of either would make it impossible for the contract to survive, and, in such case, “ non tenetur promissor.” Blakely's business qualities and ability as the manager of the band would pass away with him, and Sousa’s great skill would not be found in his executor or administrator. The compensation to be paid to Sousa included a proportion of the annual net profits of the enterprise. He was not to receive a fixed compensation at all times, but one which depended upon the success of the enterprise. He agreed to such compensation, feeling that the intelligent business direction of Blakely would make it sufficient; but, in no place in his agreement is there any provision on his part that he would trust his profits to the business management of another. This alone ought to be conclusive of his right to insist that no one can be substituted as manager for Blakely. It is true that an assignment of the contract was contemplated by the parties, but only under certain conditions. The words “ executors or administrators ” cannot be found in it, or any other words indicating an intention that, upon Blakely’s death, his personal representative should take his place. The learned referee did find as a fact that, before and at the time of the execution of the contract, Blakely and Sousa contemplated the formation of a corporation to be known as “ The Blakely Syndicate.” It was to be perfected by Blakely and a clause provided that, if the corporation should not he formed, the contract should be and remain in full force as to both parties to it. This corporation, if formed, was to succeed, by assignment of the contract, to the rights under it, but no other was to be an assignee. If the contract was to be generally assignable, what necessity was there for this express provision that it might be assigned to the company to be formed by Blakely ? The answer must be that the assignability was clearly limited to the corporation to be so formed, and extended to no one else. “ Expressio nnius, exclusio alterius.”

Going outside of the contract, the learned referee properly found that the personal qualities of each of the parties constituted a potential inducement to the making of it. In her bill of complaint, asking for relief, the peculiar skill, business ability and experience of Blakely, and the character of services which he performed under the contract, are all set forth, and he must have understood, when he lived, as his personal representative manifestly does now, that these qualities were the inducement leading Sousa into the compact. The referee was, therefore, clearly right in holding that the relations which had existed between Blakely and Sousa under the contract of June 27,1892, and extended by the agreement of September 10, 1896, were terminated by the former’s death on November 7, 1896, and the first four assignments of error are overruled.

We come now to a consideration of the right of Blakely’s estate to use Sousa’s name in connection with musical organizations. It is contended by the complainant that the said name became the property of Blakely, and, upon his death, passed to his estate. Apart from the absence of any words, showing that any part of the contract was assignable, except under the limitation already referred to, the assignment of the name “ Sousa ” cannot be enforced, for the reason that its enforcement would be against public policy and enable the assignee to impose upon and deceive the public by inducing them to attend concerts under the impression that they were to be given by Sousa, when, in fact, he would have nothing whatever to do with them. It is true that the right of a person to use the name of another in connection with a business or a manufactured article passes under an assignment and sale of good-will of the business, which includes the right to the trade name. It has often been held that a trade-mark or a trade name, representing an article of commerce or a local business, is property which may be disposed of; but the name of an artist, an author, a musician or a lawyer has never been regarded as a trade name and, as such, salable. The value of the names of such persons depends entirely upon their personal reputation, skill and experience, and is indissolubly connected or associated with the owner. “ There may, no doubt, be cases where the personal skill of an artist or artisan may so far enter into the value of a product that a trade-mark bearing his name would, or, at least, might, imply that his personal work or supervision was employed in the manufacture; and, in such case, it would be a fraud upon the public if the trade-mark should be used by other persons, and, for this reason, such trade-mark would be held to be unassignable. It is, in any case, a question whether the use of the trade-mark would give to the public or to purchasers a false idea as to who made the article; and a court of equity would not lend any active aid to sustain claim to a trade-mark which would contain a misrepresentation to the public: ” Hoxie v. Chaney, 143 Mass. 592.

In Messer v. The Fadettes, 168 Mass. 140, the leader of an orchestra attempted to „sell all her right, title and interest in and to a musical organization or orchestra, together with the name by which it was designated, the “ Fadette Ladies’ Orchestra,” and it was held that the name was unassignable, that the use of it by the assignee would mislead and defraud the public, and, for that reason, the claim to have the assignment enforced would not be sanctioned by the courts. In Skinner v. Oakes, 10 Mo. App. 45, it was held: “ If an author were to assign to another the privilege of publishing books with his name on their title page, or if a painter were to sell to another the privilege of placing the former’s signature upon pictures painted by the latter, it cannot, for a moment, be supposed that any court would protect such supposed right, even as against the original assignor. This point is absolutely clear, both upon principle and authority.” In Hegeman v. Hegeman, 8 Daly (N. Y.), 1, it was held: “When, however, the whole pecuniary value of a name is derived solely from the personal qualities of the one to whom the name belongs, such as his skill, special knowledge and experience, or from the fact that the article is produced under his personal supervision, which imparts to it a special value, then the right to the name is not transmissible.” It is useless to multiply authorities. The name “ Sousa ” in connection with the band implies his skill, science and art. Even as against him, the assignor of his name to another, the assignment cannot be enforced in a court of equity. To do so would be to lend ourselves to fraud and imposition upon the public, when it is our duty, in every instance, to protect them. The seventh and eighth assignments of error are also overruled.-

The fifth assignment challenges the correctness of a finding of fact by the referee. We cannot and ought not to disturb the finding, and the assignment falls. We cannot sustain the sixth because the referee’s conclusion, approved by the court below, that Mrs. Blakely was entitled to only one half of the net profits of the band’s performances, running to May 23,1897, inclusive, was based upon his finding that, after the death of Blakely, the appellant and the appellee had entered into an oral contract, by the terms of which the former “ was to employ all members of the band and officers, pay all salaries, receive all receipts, pay expenses, and account for and pay to defendant (Sousa) compensation in accordance with the terms of the contract between him and Mr. Blakely as it existed at the time of Blakely’s death.” At that time, the profits were equally divided, in accordance with the modification of the contract made by Blakely himself, and, as the liability of the appellee to account for the performances held up to, and including, May 23, 1897, depends upon his oral agreement with Mrs. Blakely, the measure of it must be there found. It was one half of the profits, and the referee properly recommended a decree that the appellee so account.

If, as we have held, sustaining the referee and the court below, the contract between Blakely and Sousa terminated at the former’s death, the latter’s liability to do or perform anything ended at the same time. Whatever Sousa may have done after Blakely’s death he did for himself. The term of his employment ended with the death of his employer, and, thereafter, the fruits of his genius and skill, no longer directed by another, were his own. The music which he composed when his time was again his own, belonged to him, and no error was committed in restricting his liability for royalties to the music which had been composed in the lifetime of his employer. The ninth assignment, therefore, and the tenth, which raises all the important questions just disposed of, are overruled, and the decree of the court below, made in accordance with the referee’s exceptionally well-considered report, is affirmed, and the appeal dismissed at the costs of the appellant.

Mitchell, J., dissents.