Epitomized Opinion-

Published Only in Ohio Law Abstract

Original action in the Mahoning Common Pleas wherein Daisy Getz, as administratrix of her deceased husband, James Getz, was plaintiff and the Wilkins-Leonard Hardware Co. was defendant. Getz had, two years before, entered into a written contract with the Hardware Co. to do the hauling and draying for the company. After the death of James, his wife as administratrix offered to and dé-manded the right of -'proceeding with the performance of the contract. The company refused to permit her to continue its performance and she brought this action for damages. After the jury was impanelled and before the introduction of any evidence, on motion the Common Pleas directed a verdict for the Hardware Co. She prosecuted error.

The Court of Appeals held the contract to be one of a personal nature. Otherwise the company would be deprived of the right to determine who its employe might be. He may have been selected because of his known efficiency and experience. The contract provided that he should be wholly responsible for the losses. The company cannot be compelled to depend upon the responsibility of some other person. Furthermore, under the law of Ohio, there would be no liability on the part of the estate in the carrying on of the business after the death of the decedent. An executor or administrator is not permitted to carry on the business of a decedent without an express order of the Probate Court. -The petitioner did not -set forth a cause of action and the action of the Common Pleas in directing a verdict is affirmed.