Opinion
October, 1915.
Thompson, Freedman Cooke (Carleton Sprague Cooke, John Reynolds and Wilder Goodwin, of counsel), for appellant.
O'Gorman, Battle Vandiver (George Gordon Battle and Isaac H. Levy, of counsel), for respondents.
The action was to recover damages for the breach of a contract. Charles Kohler was engaged in business under the name of Kohler Campbell and controlled three corporations. On March 14, 1913, a contract was entered into of which the following is a copy:
"NEW YORK, March 14th, 1913.
"AUTOPIANO COMPANY "MILTON PIANO COMPANY "AUTOMATIC ACTION COMPANY "KOHLER CAMPBELL
"New York City:
"GENTLEMEN. — The undersigned hereby undertake to handle your general Export business for one year from the date of your acceptance of our proposition on the following basis:
"You will entrust to us your general export business and pay us in full for our services the sum of $1,500.00 payable monthly. We will handle the same in the usual manner and will pay for your account all necessary disbursements in connection with the same for ocean freights, consular fees. All disbursements paid or incurred by us we will bill to you, bills to be presented when shipment is placed on board vessel and paid upon presentation. We will pay over to you all sums of money returned to us by the Steamship Companies as brokerage.
"We will ask you to accept this proposition by signing the acceptance on page two (2).
"Yours very truly, "AUSTIN BALDWIN Co., INC., "E. STROHM, Secy."
Page 2:
"The undersigned hereby accept the foregoing proposition and agree to comply with the terms thereof.
"Dated, NEW YORK, March 25th, 1913. "KOHLER CAMPBELL, "GEO. W. GITTINS, " Genl. Mgr."
Plaintiff continued under this agreement to handle the export business of the four concerns for two months and was paid therefor two installments of $125 each.
On May 3, 1914, Mr. Gittins, as general manager of Kohler Campbell, wrote plaintiff that the contract would eventually be unprofitable and that their export department would attend to the business thereafter, "and we are therefore closing our business with you at least for this year." It was proved that Charles Kohler died on June 4, 1913.
The plaintiff presented a claim to his executors for $1,250, and on its rejection brought this suit. The answer of the defendant contains two defenses: first, that the contract was induced by certain false and fraudulent representations, upon the discovery of which the contract had been rescinded on May 3, 1913, and second, as a partial defense that the contract being for personal services was terminated by the death of Charles Kohler. The case was submitted to the jury with a full and correct charge as to the first defense and the plaintiff's cause of action if the jury should find that no false representations were made. But the court further charged that the plaintiff in any event could not recover more than the installment that would be due at the time of the death of the testator, namely June 4, 1913. To this latter charge an excepton was taken. The jury returned a verdict for $140.
When the contract was wrongfully broken by the defendants' testator, a cause of action accrued to the plaintiff for damages in the amount remaining unpaid under the contract, namely $1,250. Even if it was a fact that if the contract had not been broken it would have been abrogated before its expiration by the death of the defendants' testator, that has no bearing on the case. The damage is not thereby minimized. The cause of action had accrued and survived the death of the party and is properly chargeable against his estate.
The judgment will be reversed, with costs to the appellant, and, as all controverted questions of fact have been resolved in plaintiff's favor, judgment will be directed for the plaintiff for the sum of $1,250, with interest upon each of the monthly installments of $125 from its due date, with costs.
BIJUR and SHEARN, JJ., concur.
Judgment reversed, with costs to appellant.