George E. Drouillard, vendor, and Clinton C. DeWitt, purchaser, in a land contract, made, on June 3, 1927, a supplemental or collateral agreement by which the vendor promised to accept from the purchaser the first four installments of interest, which were to become due semi-annually from and after July 1, 1927, as follows:
"On December 31, 1927, one-half cash and one-half by note bearing six per cent. interest payable semi-annually for two years;
"On July 1, 1928, one-half cash and one-half by note bearing six per cent. interest payable semiannually for one and one-half years;
"On December 31, 1928, one-half cash and one-half by note bearing six per cent. interest payable semi-annually for one year;
"On July 1, 1929, one-half cash and one-half by note bearing interest at six per cent. for six months."
On this agreement was written the following by John Ford:
"In consideration of George E. Drouillard agreeing to accept notes for one-half of the interest as above provided I agree to indorse said notes and become responsible to George E. Drouillard for their payment.
"JOHN FORD."
John Ford died September 27, 1927. It will be seen that he died before any of such interest became *Page 268 due and before any of the notes was to be made and indorsed, and it follows that he indorsed none of them.
A claim upon this writing is presented against the estate of Mr. Ford. The trial judge, without a jury, found for the estate, and judgment was entered accordingly. Claimant appeals.
The trial judge considered and accepted but one of the reasons advanced by the estate for decision in its favor — that there was no competent evidence from which damage might be determined, and this view made consideration of other reasons unnecessary. Perhaps he is right, but we prefer to rest decision on other ground.
Mr. Ford's undertaking to indorse the notes and thereby become responsible for their payment was purely personal and died with him.
It is said in 5 Page on Contracts (2d Ed.), p. 4722:
"If a contract is to be performed in part by delivering notes in the future to be executed by one party, the personal credit of such party who is to execute such notes is a material element of the contract, and accordingly his death without executing such notes operates as a discharge of such contract."
See, also, Browne v. Fairhall, 213 Mass. 290 (100 N.E. 556, 45 L.R.A. [N. S.] 349); note 23 L.R.A. 707; 3 Elliott on Contracts, § 1906; 3 Williston on Contracts, § 1940; 13 C. J. p. 644; 6 R. C. L. § 372, pp. 1009-1011. Affirmed.
WIEST, McDONALD, POTTER, SHARPE, and FEAD, JJ., concurred with CLARK, J.