McDade, Thomas E.

English

St. John's University School of Law

St. John's Law Review Volume 4 Number 1 Volume 4, December 1929, Number 1 Article 14 June 2014 An Application of the Law of Contracts For Personal Services Thomas E. McDade Follow this and additional works at: https://scholarship.law.stjohns.edu/lawreview Recommended Citation McDade, Thomas E. (1929) "An Application of the Law of Contracts For Personal Services," St. John's Law Review: Vol. 4 : No. 1 , Article 14. Available at: https://scholarship.law.stjohns.edu/lawreview/vol4/iss1/14 This Note is brought to you for free and open access by the Journals at St. John's Law Scholarship Repository. It has been accepted for inclusion in St. John's Law Review by an authorized editor of St. John's Law Scholarship Repository. For more information, please contact selbyc@stjohns.edu. ST. JOHN'S LAW REVIEWnot an unreasonable exercise of such legislative prerogative to createa new cause of action against a wrongdoer responsible for death bymeans of which such wrongdoer is compelled to contribute to thefunds employed to effectuate the benevolent and charitable purposesof the Workmen's Compensation Law.SIDNEY MOERMAN.AN APPLICATION OF THE LAW OF CONTRACTSFOR PERSONAL SERVICES.The general rule applicable under common law and under thestatutes 1 of the several states is that actions based on contract sur-vive the death of either party and may be enforced by or against hisheirs or executors.2 It is with the exception to this well-establishedrule that we are concerned-the exception found in contracts in-volving personal services. 3That one may choose with whom he will contract is a basic prin-ciple of law. The courts early recognized 4 that when people contractwith each other for services essentially personal no assignment orsubstitution can be satisfactory, and the original party cannot besucceeded by his personal representative. A personal service contractrequires the exercise of personal skill and knowledge, it cannot bedelegated to another.3 The long line of authorities has led to thecrystallization of the rule in Lorillard v. Clyde,6 followed by laterdecisions, in which the Court laid the test to determine whether agiven case fitted within this exception. The Court said:"It is well settled that when performance depends on thecontinued existence of a given person or thing and such con-tinued existence was assumed as the basis of the agreement,'New York State Decedent Estate Law, Sec. 16, L. 1909, ch. 18.aC. J. 181, Sec. 326; Livermore v. Bainbridge, 49 N. Y. 125 (1872);Zabriski v. Smith, 13 N. Y. 322, 64 Amer. D. 551 (1855); Robinson v.Thomas, 123 App. Div. 411, 107 N. Y. Supp. 110 (1908); McGregor v.McGregor, 35 N. Y. 218 (1866); Allen v. Confederate Pub. Co., 49 S. E.782, 121 Ga. 773 (1905) ; White v. Allen, 133 Mass. 423 (1882) ; McCartneyv. Corbine's Estate. 108 I1. App. 282 (1903).'Lorillard v. Clyde et al., 142 N. Y. 456, 37 N. E. 489, 24 L. R. A. 113(1894) ; Dexter v. Norton, 47 N. Y. 62, 7 Amer. Rep. 415 (1871) ; Spauldingv. Rosa, 71 N. Y. 40, 27 Amer. Rep. 7 (1877); Wheeler v. Conn. Mut. Life Ins.,82 N. Y. 543, 37 Amer. Rep. 549 (1880); Dolan v. Rodgers, 149 N. Y. 489,44 N. E. 167 (1896).'Babcock v. Goodrich, 3 How. Pr. (N. S.) 52.'3 Williston, Contracts 3299.'Supra Note 3.NOTES AND COMMENTthe death of the person or destruction of the thing puts an endto the obligation."With the doctrine as settled as it appears, its application hasproved more difficult than might be expected. The recent case ofBrearton v. DeWitt 7 is an interesting illustration.Elden C. DeWitt innoculated Mae E. Brearton with the germsof a serious disease. Six years later, December, 1925, both partiesentered into an agreement. Mrs. Brearton promised to give up herposition, isolate herself from her friends and subject herself to thecontrol of DeWitt for cures and treatment. In consideration DeWittwas to pay Mrs. Brearton the sum of $1,000 a month for life. Pay-ments were made from December, 1925 to May, 1926. March, 1927,sixteen months after the agreement was entered into DeWitt died.Mrs. Brearton attempted to collect from DeWitt's executors whorefused to pay; therefore, plaintiff brings an action for breach ofcontract against DeWitt's estate.Here a vital term of the plaintiff's obligation was to subjectherself to cures and treatments to be administered to her, by or underthe direction of DeWitt-that such treatment was to come fromDeWitt personally. Plaintiff could not possibly have meant to subjectherself to the treatment determined by DeWitt's executors.In the Appellate Division Judge O'Malley wrote a dissentingopinion in which Judge Finch concurred, arguing that the agreementsurvives because in addition to personal services the agreement in-volves a non-personal element, namely, an obligation to pay money,which was founded upon a consideration fully executed on plain-tiff's part.The contract seems to be entire, the consideration on plaintiff'sside being her isolation and subjection for the whole period of herlife to enable defendant's testator to attempt cures by personal super-vision and direction. We cannot say that her carrying out of her partof the agreement for one month or sixteen months was proportionateto $1,000 or $16,000. It is analogous to the case of a builder whoagrees to build a house. For convenience the agreement may providefor payment in installments as the work progresses, but that does notsay that the contract is not entire or that the work completed isproportionat6 to the amount paid. We do not believe that "theobligation to pay money is founded upon a consideration fullyexecuted," but, as Judge Proskauer points out in the prevailing opin-ion, that by DeWitt's death "plaintiff was no longer able to performan important part of her obligation."It was held on motion for a judgment on the pleadings that thecomplaint must be dismissed on the grounds that the contract is so'234 N. Y. Supp. 716 (May, 1929).ST. JOHN'S LAW REVIEWessentially personal in its nature that no obligation survives the deathof the promisor.8We have found that this is a personal service contract. We havediscovered that the general rule in New York and throughout theUnited States is that contracts involving personal service do not sur-vive. The tendency of our courts is to abide by the rule laid down byprecedent and judicial opinion where common justice and publicpolicy do not demand a change.The rule may seem harsh when we consider that the plaintiff isliving a life of torture, unable to associate with friends and com-panions and with no means of support. But the inoculation tookplace six years prior to this agreement and formed no part of theconsideration. The plaintiff knew what she was contracting for and,in our opinion, no injustice was wrought. It must be borne in mindthat practical justice can only be the measure of what would be fairin the greatest number of cases.Public policy in this case, far from being a reason for disregard-ing precedent, demands that the law should not be changed. Thestate is constantly endeavoring to improve health conditions and thecourts should encourage this good work by refusing its aid to des-perate persons, unwise persons--criminal offenders who, for pecuni-ary compensation, agree knowingly and foreseeingly to contractswhich endanger their own health and that of the community. If weshould allow recovery to this plaintiff who subjected herself abso-lutely to the control of a person to do as he saw fit, experimenting tothe injury of her health, it would encourage other people to do like-wise in similar cases.THOMAS E. McDADE.SAVINGS BANK TRUST DEPOSITS AND CREDITORS' RIGHTS.It is today the law of this jurisdiction that where A depositsmoney in a savings bank in his own name, in trust for B, it does notin itself establish an irrevocable trust, during the life-time of thedepositor, but is merely a tentative trust, revocable at the depositor'swill, until his death or until such time as he completes the gift in hislife-time by some unequivocal act or declaration. At his death a pre-sumption arises that an absolute trust was created as to those funds'It might well be contended however that at the death of DeWitt, plain-tiff's obligation under the contract had been fulfilled. The main object of theagreement being to allow him to experiment on her physical person, it followsthat there was nothing more for her to do in pursuance of the contract, becausethe contemplated purpose of the contract had been effected.

An Application of the Law of Contracts For Personal Services

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An Application of the Law of Contracts For Personal Services

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