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self;' and a promise to pay money to oneself is not a promissory note. and the same person cannot be party to a contract on both sides; such an instrument can create no liability or right to a contract. Companies are sometimes formed into departments and their accounts kept separate and distinct, but such departments cannot enter into agreement between themselves, nor assume obligations that can be enforced. The departments must each
be independently incorporated and have a separate existence. The same person cannot be party to both sides, although other parties are joined with. him on one side or the other; and an agreement in such a form creates no legal right or liability. The reason of this is that it is impossible for a man to sue himself. Notes or contracts made by several, jointly or severally, cannot, however, be avoided for this reason. For the same reason it has been held that a partner cannot contract with his firm, and that two firms having a common partner could not incur liability by contract. It has been held (1824) that the engineer of a bridge who was a shareholder in a bridge firm could not mintain an action against his firm, being himself a partner. The tendency to-day is to regard a partnership in the same light as a corporation, to treat it as an entity, an artificial body independent of the partners who comprise it. On this theory it has been held that firms having a common partner can sue each other in equity or in those states where the code is established. Agreements between partners have been allowed in equity as matters of account in settling affairs of the partnership.' It is hardly necessary to say that one company may contract with another even though there are directors in one that hold a like office in the other; the company or corporation being regarded as a creation of itself, independent of the persons who represent it.
6. Only Parties to Contract are Bound.-Generally speaking, the legal effect of a contract is restricted to the parties and no right or liability can. result to a person who is not a party. When a contract is made with two or more persons for some act to be done or payment to be made to one of them only, the right to have it done or paid accrues to all the persons, who must all join in suing upon it, although only one is to have the benefit."
7. Legal Representatives of the Parties.-In drafting construction contracts it is usual to provide for the death or incompetence of either party by making the party's heirs, executors, administrators, or assigns of a person, or the successors and assigns of a corporation, parties to the contract, after the following manner:
"The said Party of the Second Part [the said
or the said Builder,
or the said Contractor] does hereby, for himself, his heirs, executors, and administrators, covenant, promise, and agree to and with the said Party of the First Part [the said or the said owner, company, or city], his (their) executors, administrators, or assigns [or its successors and assigns], that he, the said ...., his (their) executors, administrators, etc., shall or will, for the considerations hereinafter mentioned, etc., erect, build, etc."
In case of death or assignment these parties, who may be called secondary parties, become the representatives of the principal party and take his place, so far as is possible.
8. The Representatives after Death, or Changes Effected by Law.Executors and administrators are the personal representatives of a party as to his personal estate after his death. The right to enforce certain contracts of the party whom they represent has been recognized from the earliest times. This right belongs exclusively to the executor, or adminis trator, or successors, and it cannot be transferred to other parties by words introduced into the body of the contract. The personal representative may maintain an action to recover money payable to the person he represents, though the contract failed to make the money payable to his executor or administrator. If the contract made it payable to the contractor or his assigns, or to his heirs or executors, the personal representative may recover without even averring that the money has not already been paid to the heirs. So, too, the personal representative is liable on the contract, although not named in the terms. The executor or administrator has been held liable even when the heirs were named and the executors were not. If a house is to be completed before a certain time, the contractor's executor or administrator is bound to perform the contract, or to enforce its performance on the part of the owner. The heir cannot enforce its performance even if the profits are partly in lands. In the interests of the estate the personal representative may rescind the contract of his decedent, with the consent of the company or other party. It is a presumption of law that parties to a simple contract intend to bind not only themselves but their personal representatives."
9. Executor or Administrator Takes Benefits and Burdens of Contract.An executor becomes entitled to the benefit of the contracts of a deceased contractor for the supply of materials, or for the execution of works remaining incomplete at his death that do not involve the personal skill and ability of the contractor; and he is entitled as executor to complete the
The representative may be mentioned as in the form given in Soc. 4, page 3, which is simpler in that it avoids the constant repetition of the words "heirs, executors. administrator, or assigns" in the text of the contract.
Pollock on Contracts 206.
37 Amer. & Eng. Ency. Law 262.
Crans v. Kans. Pac. R. Co., 131 U. S. clxviii (1879).
17 Amer. & Eng. Ency. Law 327.
2 Parsons on Contracts (6th ed) 530
works, and to recover their value for the benefit of the contractor's estate In the case of an ordinary building contract undertaken and commenced by the deceased builder, the executor may complete it and recover the price. in his representative character. A contract to build a lighthouse was held to be discharged by the death of the contractor, on the ground of its being a matter of personal skill and science."
10. Contracts for Personal Skill of Contractor.-Whether or not the executor or administrator of an estate can carry out and receive the benefits of the contractor's contracts depends upon the character of the work. It may well be doubted that the representative of a physician, lawyer, or engineer would be allowed to step into the shoes of the deceased. A contractor or builder may have acquired a reputation in the construction of a particular kind or class of work, in which his personal skill and proficiency are the important consideration in employing him. If this can be proved, then the contract cannot be performed by the executor, administrator, or the assignee.' If the contract is not founded upon personal relations, or does not require personal skill, it survives to the executor or administrator, and the estate may be held liable for a breach committed after as well as before the death of the contractor. It has been held in New York State that a contract to do certain repairs on a building for a specific sum is not a personal contract, which is terminated by the death of the owner, but the contractor can recover of the administrator for work done thereunder after the death of the owner, though the owner devised the property and the devisee directed the contractor to continue the work. Ordinary contracts for engineering and architectural work pass to the con. tractor's legal representatives, who take the burdens as well as the benefits. A coat ordered of a tailor, who began to make it and died before completion, was completed and delivered by his administrator, who recovered the price in his representative character.'*
11. Executor Named in Contract. It is not necessary that the executor or administrator be named in terms; if the contract be of such a character that it survives, the personal representative of the contractor is liable upon it. If the executor be named, it is evidence that the parties did not consider the contractor's services as personal.
Stellman v. Northup, 109 N. Y. 473; Pollock on Contracts 206; 126 N. Y. 45.
Leake's Digest of the Law of Contracts,
2 Wentworth v. Cock, 10 A. & E. 45. 3 Robinson v. Davidson. L. R. 6 Exch. 269; and see Lloyd's Law of Building, § 12.
Cooper v. Jarman, L. R. 3 Eq. 98; 7 Amer. & Eng. Ency, of Law 326.
5 Russell & Buckhout (Sup.), 34 N. Y. Supp. 271, Dykman, J., dissenting.
Wentworth . Cock, 10 A. & E. 45;
If the contract is between a city
Siboni v. Kirkman, 1 M. & W. 418.
As to what contracts will be considered personal, see Robinson v. Davidson, L. R. 6 Exch. 269, 274; Cooper v. Jarman, L. R. 3 Eq. Cas. 98; Dickinson v. Callahan, 19 Pa St. 227.
The contract of an author to write a book is discharged by his death Marshall v. Broadhurst (Eng.), 1 C & J. 403.
Werner v. Humphreys, 2 M. & G. 853. 8 Quick v. Ludburrow, Bulst, 60: 7 Amer. & Eng. Ency, Law 326. 12, infra.
and a corporation, "its successors and assigns," for erecting waterworks and furnishing water to the city, it is assignable by the corporation.' If a party contract for himself and his executors to build a structure and die, the executors must go on or they will be liable for damages for not completing the work. If they do go on, they may recover as executors and the money when recovered will be assets in their hands. Hence the advis ability of a contractor's making his executor or administrator a party to his contract. Contracts founded on personal qualifications, as skill, ability, or integrity, such as the employment of an agent, a servant, an artist, an author, an architect, and an engineer, terminate with the death of the employer or employee in the absence of express stipulation.*
A contract for the employment of an agent by a partnership is discharged by the death of one of the partners. Therefore the legal representatives cannot enforce such agreements; and frequently, if the contract be for a completed structure or piece of work, the representatives cannot recover for the services performed.
12. Executor's Liability on Contracts and for Torts of Party.-An executor or administrator has power to complete a contract made by the person he represents, but he cannot by virtue of the general powers of his office make contracts which shall bind the decedent's estate. The effect of such contracts is to bind the representative. For goods or materials purchased for the benefit of the estate he incurs a personal liability. This would not apply probably to materials purchased in the execution of a building contract of decedent, as executor or administrator.
At common law no action could
Carlyle L. W. & P. Co. v. City of Carlyle (Il Sup.), 29 N. E. Rep. 556.
* Marshall . Broadhurst, 1 C. & J. 403.
It may be asked why the word "heir" is employed, as if it were possible for a party to bind his heirs to perform covenants to build, or to assume contractual obligations, since the courts have held that the executor is the one who is liable though he be not mentioned in the contract By the common law contractual rights went to the executor and adminis trator on death of the contractor, with all personal property, choses in action, etc. His estates in fee simple were liable in the hands of the heir only, for debts by specialty in which the heir was named. 4 Gray's Cases on Real Property 642 It therefore was necessary that the heir should be named in the contract, and that it should be under seal, if the owner or company would have any claims on the real estate; by which it is probable that it became the custom to draw construction contracts as specialties In the United States generally, a man's property, real and personal, is liable for his debts, and the distinc
be brought against the executor or
tion between real and personal assets is not so marked in considering contract obligations. 4 Gray's Cases on Real Property 643. There is little use of the word, but it is and will be used, for lawyers are slow to make changes in old and established forms. Like the expression "work and labor" in the common counts, it is used because others have used it, but it would be difficult to distinguish between work and labor To be safe and avoid unforeseen complications both the words are used, and it is recommended that the word "heirs" be inserted, as it is good usage. The reader may reasonably exclaim, What a blessing it would be if some profound scholar of law would come forward and exp ain away the abundance of meaningless words that pervade legal documents, and expunge the surplusage imposed by ancient laws and practice that still pervades our legal instruments!
7 Amer. & Eng. Ency. Law 262 and
7 Amer. & Eng. Ency. Law 326.
administrator for a tort committed by the deceased person whom he might represent. The word "tort" includes acts of trespass, trover, false imprisonment, assault and battery, slander, deceit, etc. Under that law it has
been held that a complaint alleging that a contractor was prevented by owner from performing work under his contract and asking damages resulting from the loss of profits which he expected to make was an action in tort, which did not survive the death of the owner.' It has been held that if by reason of a tort the estate of the deceased person has derived pecuniary profits, that the representative could be compelled to account to the party injured.' 13. Assignee of Contractor or Owner.-The word "assigns" is in common use and is a desirable, though perhaps not a necessary word. It should be omitted if the contract is a contract for personal skill or if it contains a clause forbidding an assignment, as it tends to show a contrary intention. An assignee would probably be bound without being named in the contract, or at least he could take no benefit without assuming the burdens.' An assignment of a contract in express violation of a positive prohibition is void, and the party claiming through such an assignment is entitled to no relief in equity.**
Contracts for the performance of personal duties or services are not assignable so as to confer the right upon the owner to command the services or to compel him to accept performance by the assignee. One who has contracted to perform work which requires skill and science cannot impose another in his place without consent of the other party. If the contract is given to the contractor because of his peculiar proficiency and skill in executing the work required to be done, then it can be assigned only by consent of the parties to the contract, which may be properly established by facts and circumstances showing his assent. Evidence tending to show such assent is admissible."
A contract for the erection of a lighthouse has been held one for personal services which could not be completed by the representatives of the contractor."
The introduction of the word assigns in the instrument may be evidence that the parties anticipated the possibility if not the probability of its assignment, and it is therefore sometimes omitted rather than to raise such a presumption. Thus an agreement or promise to a company, its assigns or successors, will enable the assigns and successors to complete works started by the company, and to enforce promises made to it, when the execution of the work is the essence of the agreement."
Jenkins v. Bennett (S. C.), 18 S. E. Rep. 929.
97 Amer. & Eng. Ency. Law 333.
3 29 Amer. & Eng. Ency. Law 978. + Griggs v. Landis, 19 N. J. Eq. 350 . 1 Amer. & Eng. Ency. Law 832; Munsell v. Temple, 3 Gillman 93; Lansden v.
McCarty, 45 Mo. 106; Bethlehem v. Armis, 40 N. H. 34; Haskell v. Blair, 3 Cush. (Mass.) 534.
Crawford v. Wolf. 29 Iowa 567 . Wentworth v. Cock, 10 A. & E. 45. Michigan M. & C. R. Co. v. Bacon, 33 Mich. 446 .
* See Secs. 289–296, infra.