Landa v. Shook

Counsel

J.D. Guinn, for appellant. — We recognize the proposition that surviving partners must complete the contracts of the firm in some instances. But it is universally held, that this is not the rule in cases where contracts require the personal services of the deceased partner. Ayers v. Railway, 52 Iowa. In our State the doctrine is well settled. Fulton v. Thompson, 18 Tex. 278 ; Story on Part., 317. Then, on the death of Dittmar the duties of the partners ceased, as did the employment, and they had no more to say until their bill was due by virtue of the contract. When a party employs a firm, it is entitled to the services of all of that firm, and they can not supply the place of one of the firm by even superior ability (Morgan v. Roberts, 38 Illinois, 65; Weeks on Attorneys, section 365); and it mattered not whether Shook Vanderhoeven were good lawyers or not. Landa did not think so, and the employment of a lawyer is a matter of special trust and confidence ( 18 Tex. 140 ), and did not feel under any obligations to intrust the defense of the case to them. And now the question is fairly before us, and it is this: was he under the necessity to employ the remnant of the firm? Suppose Landa had given his note to Shook Dittmar, to the effect that he would pay them the sum of $1000, in consideration of their services in the case, stating positively that same was not, however, to be paid until the final termination of the case, and should or should not incorporate his reasons for not paying until that time (as I do not think it material, if reasons existed) in the agreement or note, instead of a verbal agreement (which is certainly the same thing), but before the suit terminated, one of them should die. It could not and would not be pretended that the death of one of the parties matured the claim before the suit was brought to an end; nor do we understand that appellee so contends. Now, as we have seen, by the death of one of the firm the contract is terminated and the partnership dissolved. 75 Tex. 644 . Neither the employer or employe is under any obligations to the other so far as to who shall complete the contract. Then upon what theory can it be maintained, that the bill for the quantum meruit is due and actionable? Not by virtue of the language of the contract, because it says to the contrary; not by virtue of the original intention, because that matter was canvassed in the outset and the intention was made manifest. In order to mature the claim and take it out of the pale of the law, there must be some reason. What was it in the case at bar? Certainly not because Landa discharged them, for when Dittmar died the employment was at an end, and he can not discharge a man from his employment when he is not in it. The relation of employer and employe did not exist at this time between the parties. If so, was not Landa free to employ whomsoever he pleased? THos. H. Franklin, for appellee. — By the death of Dittmar, the contract was rendered impossible of performance by the other members of the farm, unless Landa assented to a performance of same by them. Landa refused to permit them to perform the contract. The contract was then breached. A specific performance of same could not be enforced. A recovery could not be had on it, for it had not been fully performed. A recovery could be had on the quasi or implied contract for services rendered by Dittmar to date of his death. This right of recovery accrued upon the breach. The right to sue existing, the statute of limitations began to run from that time. This suit, therefore, not being upon the contract, but upon the quasi or implied contract that Landa should pay for services rendered by Dittmar prior to his death, the charge given by the court was correct. Wright v. McCampbell, 75 Tex. 644 [ 75 Tex. 644 ]; Little v. Caldwell, 101 Cal. 553 ; Clark on Con., 644, et seq.; Laws on Con., secs. 40, 440, 441; Wood on Lim., 269, et seq., and notes. In the case of Hall v. Wright, El. B. E. (96 E. C., L. R.), 793, the court says: "A contract whose performance depends upon the personal capacity of the parties, is discharged by their death or incapacitating illness." In Baird v. Ratcliff, 10 Tex. 82 , Judge Hemphill says: "If the plaintiff had voluntarily abandoned the case of his client, he could not have recovered on a note; but if he had died, and thus been deprived, by the act of God, of the ability to render future services, he would have been entitled to the value of those already rendered." Citing Wright v. McCampbell, 75 Tex. 648 [ 75 Tex. 648 ]; McGill v. McGill, 2 Metc., 260; Randolph v. Randolph, 34 Tex. 185 .