A-57078, SEPTEMBER 12, 1934, 14 COMP. GEN. 218

A-57078: Sep 12, 1934

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CONTRACTS - PERSONAL SERVICES WHERE A JOINT AND SEVERAL CONTRACT IS FOR THE RENDITION OF PERSONAL SERVICES OF A SKILLED CHARACTER. SUCH CONTRACT IS TERMINATED WITH THE DEATH OF ONE OF THE OBLIGEES RENDERING HIS FURTHER PERFORMANCE THEREOF IMPOSSIBLE. AS FOLLOWS: YOUR ATTENTION IS CALLED TO CONTRACT ACSC-2. THAT THE PARTIES HEREUNTO HAVE MUTUALLY COVENANTED AND AGREED AND BY THESE PRESENTS DO COVENANT AND AGREE WITH EACH OTHER AS FOLLOWS: " ONE OF THESE ARCHITECTS. TO WHOM REFERENCE IS MADE IN THE PRECEDING PARAGRAPH. YOUR ADVICE IS THEREFORE REQUESTED TO THE PROCEDURE WHICH SHOULD BE FOLLOWED BY THIS OFFICE IN THE FUTURE IN ADMINISTERING THIS CONTRACT AND THE FORM IN WHICH THE VOUCHERS SHOULD BE DRAWN.

A-57078, SEPTEMBER 12, 1934, 14 COMP. GEN. 218

CONTRACTS - PERSONAL SERVICES WHERE A JOINT AND SEVERAL CONTRACT IS FOR THE RENDITION OF PERSONAL SERVICES OF A SKILLED CHARACTER, SUCH CONTRACT IS TERMINATED WITH THE DEATH OF ONE OF THE OBLIGEES RENDERING HIS FURTHER PERFORMANCE THEREOF IMPOSSIBLE.

COMPTROLLER GENERAL MCCARL TO THE ARCHITECT OF THE CAPITOL, SEPTEMBER 12, 1934:

THERE HAS BEEN RECEIVED YOUR LETTER OF AUGUST 7, 1934, AS FOLLOWS:

YOUR ATTENTION IS CALLED TO CONTRACT ACSC-2, DATED MAY 15, 1930, BETWEEN THIS OFFICE AND CASS GILBERT, CASS GILBERT, JR., AND JOHN R. ROCKART, ARCHITECTS, FOR FURNISHING ARCHITECTURAL AND ENGINEERING SERVICES REQUIRED TO DESIGN THE NEW SUPREME COURT BUILDING AT WASHINGTON, D.C. THIS CONTRACT PROVIDES IN PART AS FOLLOWS:

"THEREFORE, THIS AGREEMENT MADE AND ENTERED INTO THIS 15TH DAY OF MAY 1930, BY AND BETWEEN THE UNITED STATES OF AMERICA, ACTING IN THIS BEHALF BY DAVID LYNN, ARCHITECT OF THE CAPITOL, EXECUTIVE OFFICER AND MEMBER OF THE UNITED STATES SUPREME COURT BUILDING COMMISSION, ACTING UNDER HIS INSTRUCTIONS FROM THE SAID COMMISSION, HEREAFTER TO BE KNOWN AS THE PARTY OF THE FIRST PART, AND CASS GILBERT, CASS GILBERT, JR., AND JOHN R. ROCKART, PRACTICING ARCHITECTS OF 244 MADISON AVENUE, NEW YORK, HEREAFTER TO BE DESIGNATED AS THE PARTIES OF THE SECOND PART, JOINTLY AND SEVERALLY, THEIR HEIRS, EXECUTORS, ADMINISTRATORS, SUCCESSORS, AND ASSIGNS; WITNESSETH, THAT THE PARTIES HEREUNTO HAVE MUTUALLY COVENANTED AND AGREED AND BY THESE PRESENTS DO COVENANT AND AGREE WITH EACH OTHER AS FOLLOWS: "

ONE OF THESE ARCHITECTS, CASS GILBERT, TO WHOM REFERENCE IS MADE IN THE PRECEDING PARAGRAPH, DIED ON MAY 17, 1934. YOUR ADVICE IS THEREFORE REQUESTED TO THE PROCEDURE WHICH SHOULD BE FOLLOWED BY THIS OFFICE IN THE FUTURE IN ADMINISTERING THIS CONTRACT AND THE FORM IN WHICH THE VOUCHERS SHOULD BE DRAWN; ALSO AS TO WHETHER THE CONTRACT SHOULD BE CONTINUED IN FORCE WITHOUT MODIFICATION.

I AM ENCLOSING, HEREWITH, COPY OF A REQUISITION, DATED JUNE 26, 1934, WHICH HAS BEEN RECEIVED IN THIS OFFICE FROM THE ARCHITECTS, IN WHICH PAYMENT IS REQUESTED FOR SERVICES RENDERED FROM DECEMBER 30, 1933, TO JUNE 26, 1934; THE REQUISITION BEING SIGNED BY CASS GILBERT, JR., AND JOHN R. ROCKART AND ALSO BY THE EXECUTOR AND THE EXECUTRIX OF THE ESTATE OF CASS GILBERT.

THE ORIGINAL COPY OF THIS REQUISITION HAS BEEN RETAINED IN THIS OFFICE FOR THE PURPOSE OF ACCOMPANYING THE PAYMENT VOUCHER IN FAVOR OF THE ARCHITECTS, WHEN THE SAME IS PREPARED, AND YOUR INSTRUCTIONS ARE REQUESTED AS TO THE MANNER IN WHICH THIS VOUCHER SHOULD BE PREPARED, AS WELL AS FUTURE PAYMENT VOUCHERS COVERING SERVICES HEREAFTER RENDERED UNDER THE CONTRACT.

CONTRACT ACSC-2, DATED MAY 15, 1930, WAS BETWEEN THE UNITED STATES, REPRESENTED BY THE ARCHITECT OF THE CAPITOL AND "CASS GILBERT, CASSGILBERT, JR., AND JOHN R. ROCKART," PRACTICING ARCHITECTS OF 244 MADISON AVENUE, NEW YORK, N.Y., "JOINTLY AND SEVERALLY, THEIR HEIRS, EXECUTORS, ADMINISTRATORS, SUCCESSORS, AND ASSIGNS," AND THEY AGREED TO FURNISH ALL ARCHITECTURAL AND ENGINEERING SERVICES REQUIRED TO DESIGN THE SUPREME COURT BUILDING AND TO MAINTAIN GENERAL SUPERVISION OF THE WORK WHILE IN PROGRESS. THE ARCHITECTURAL FIRM WAS KNOWN AS CASS GILBERT, C., AND CASS GILBERT, WHO YOU REPORT AS HAVING RECENTLY DIED, WAS A VERY WELL- KNOWN ARCHITECT, WHO HAD DESIGNED AND POSSIBLY SUPERVISED THE CONSTRUCTION OF A NUMBER OF MONUMENTAL BUILDINGS IN VARIOUS SECTIONS OF THE UNITED STATES. HIS SON, CASS GILBERT, JR., AND JOHN R. ROCKART, THE OTHER PARTIES TO THE CONTRACT OF MAY 15, 1930, WERE NOT SO WELL KNOWN AND HAD NOT THE REPUTATION AS ARCHITECTS POSSESSED BY THE LATE CASS GILBERT. IS A WELL-SETTLED PRINCIPLE OF LAW THAT IN THE CASE OF OBLIGEES A CONTRACT MAY BE SO PERSONAL IN ITS CHARACTER AS TO PRECLUDE SURVIVORSHIP. THE DEATH OF ONE SUCH OBLIGEE DISCHARGES THE OBLIGOR FROM FURTHER LIABILITY UNDER THE CONTRACT. SEE GRIGGS V. SWIFT, 5 L.R.A. 405; BRACE V. CALDER, 2 Q.B. 253; TASKER V. SHEPHERD, 6 H. AND N. 557; AND COWASJEE NANAVHOY V. LALLDHOY VULHUBHOY, L.R. 3 IND.APP. 200. SUCH A JOINT CONTRACT AS THE ONE IN QUESTION IS AN AGREEMENT BY ALL THAT THE ACT PROMISED SHALL BE DONE, AND UNQUESTIONABLY THE CONTRACT IN THIS CASE REQUIRES JOINT ACTION OF ALL THE OBLIGEES, AND THAT HAS BEEN RENDERED IMPOSSIBLE THROUGH THE DEATH OF CASS GILBERT. IT IS STATED IN WILLISTON ON CONTRACTS, SECTION 344, P. 664, THAT A CONTRACT OF A THEATRICAL AGENT TO EMPLOY THREE PERSONS FOR PERFORMANCE IN WHICH THEY WERE ALL TO TAKE PART COULD NOT BE ENFORCED BY THE SURVIVORS IF ONE SHOULD DIE, AND BY THE SAME AUTHORITY IN SECTION 1940, P. 3296, THAT THE DEATH OR LONG-CONTINUED ILLNESS OF AN EMPLOYEE IN EFFECT VOIDS HIS PROMISE. SEE ALSO SECTION 459, AMERICAN LAW INSTITUTE, RESTATEMENT OF THE LAW OF CONTRACTS.

THE PROMISE OR OBLIGATION OF CASS GILBERT TO DESIGN AND SUPERVISE THE CONSTRUCTION OF THE MONUMENTAL NEW SUPREME COURT BUILDING IS AS MUCH PERSONAL IN CHARACTER AS THE ILLUSTRATIONS CITED BY WILLISTON ON CONTRACTS, INCLUDING THAT OF THEATRICAL PERFORMERS, A PAINTER OF PORTRAITS, OR ANY OTHER CONTRACT WHERE THE OTHER PARTY IS TO PAY FOR THE SKILL AND EXPERIENCE WHOLLY PERSONAL TO THE INDIVIDUAL EMPLOYED, AND THE RULE OF LAW IS THAT SUCH CONTRACTS, WHETHER JOINT OR SEVERAL, ARE TERMINATED WITH THE DEATH OF A SOLE OR JOINT OBLIGEE WHO IS TO RENDER SUCH PERSONAL AND SKILLFUL SERVICES. THAT PRINCIPLE IS APPLICABLE IN THIS CASE, AND WHILE THE ESTATE OF CASS GILBERT AND THE SURVIVING CASS GILBERT, JR., AND JOHN R. ROCKART ARE ENTITLED TO THE CONTRACT COMPENSATION EARNED AND UNPAID AT THE DATE OF DEATH OF CASS GILBERT, IT DOES NOT FOLLOW THAT THE ESTATE OF CASS GILBERT AND THE OTHER TWO ARCHITECTS ARE ENTITLED TO THE CONTRACT COMPENSATION TO BE EARNED AFTER THE DATE OF DEATH OF CASS GILBERT UNLESS THE CONTRACT WAS IN FACT SUBSTANTIALLY COMPLETED AT THAT TIME.

EVEN IF THE CONTRACT WAS NOT TERMINATED WITH THE DEATH OF CASS GILBERT, THE TWO SURVIVORS, CASS GILBERT, JR., AND JOHN R. ROCKART, SHOULD NOT BE PAID COMPENSATION FOR THE PERIOD SUBSEQUENT TO THE DEATH OF CASS GILBERT, WHICH WAS FIXED BECAUSE OF THE SKILL, EXPERIENCE, AND REPUTATION POSSESSED BY CASS GILBERT, AND WHO USED THE OTHER TWO PARTIES TO THIS CONTRACT MORE OR LESS AS HIS ASSISTANTS IN DESIGNING THE NEW SUPREME COURT BUILDING AND IN SUPERVISING ITS CONSTRUCTION AS REQUIRED BY THE TERMS OF THE CONTRACT UNLESS THE CONTRACT WAS SUBSTANTIALLY COMPLETED AT THE TIME OF CASS GILBERT'S DEATH; THAT IS, THAT ALL OF THE DRAWINGS, ETC., HAD BEEN MADE AND APPROVED BY HIM AND NOTHING REMAINED EXCEPT TO SEE THAT THE CONSTRUCTION CONTRACTOR CARRIED THEM OUT. IF IT IS BELIEVED THAT CASS GILBERT, JR., AND JOHN R. ROCKART ARE QUALIFIED TO CONTINUE THE DRAFTING OF SUCH NECESSARY PLANS AND SPECIFICATIONS AS MAY HAVE BEEN UNFINISHED FOR THE COMPLETION OF THE NEW SUPREME COURT BUILDING AND TO SUPERVISE ITS COMPLETION; THAT IS, TO PERFORM THE SERVICE REQUIRED IN THE CONTRACT OF MAY 15, 1930, THERE SHOULD BE A SUPPLEMENTAL AGREEMENT THEREFOR--- IN EVENT THERE WAS ANY SUBSTANTIAL AMOUNT OF WORK UNCOMPLETED AT THE TIME OF THE DEATH OF CASS GILBERT--- FIXING SUCH REDUCED COMPENSATION AS MAY BE DEEMED PROPER FOR THEIR SERVICES IN COMPLETING THE BUILDING. IF IT IS CONSIDERED THAT THEY ARE NOT COMPETENT TO CARRY OUT ANY SUBSTANTIAL PART OF THE WORK LEFT UNFINISHED BY CASS GILBERT, THE CONTRACT SHOULD BE TERMINATED AS PROVIDED IN ARTICLE 3 THEREOF AND THE COMPENSATION ADJUSTED AS THEREIN STATED TO THE DATE OF DEATH OF CASS GILBERT, WITH SUCH ADDITIONAL REASONABLE ALLOWANCE AS MAY BE FAIR AND EQUITABLE FOR ANY SERVICES THESE TWO MEN MAY HAVE RENDERED DURING THE PERIOD INTERVENING BETWEEN THE DEATH OF CASS GILBERT AND THE DATE OF TERMINATION OF THE CONTRACT. THE VOUCHERS SHOULD BE SENT TO THIS OFFICE FOR DIRECT SETTLEMENT AS CLAIMS.