I seriously question the application of the principle upon *Page 269 which Justice CLARK bases decision to the written agreement upon which this claim is founded. If, as I think, this is not a contract of a personal nature which only the promisor could perform, but rather one which involves only liability to pay money, it is binding upon the estate of Mr. Ford. The distinction in this respect between contracts involving only the payment of money and those of a personal nature is pointed out in the note to Drummond v. Crane, 159 Mass. 577 (35 N.E. 90, 38 Am. St. Rep. 460), in 23 L.R.A. 707. See, also, note under Browne v. Fairhall, 213 Mass. 290 (100 N.E. 556), in 45 L.R.A. (N.S.) 349.
"The test for determining whether a particular contract is discharged by death seems to be whether it is of such a character that it may be performed by the promisor's personal representative. It must be admitted that the line of demarcation between the two kinds of contracts under consideration is not very clearly marked in some instances. No doubt the facts and circumstances of each particular case will be taken into account in determining whether the contract was purely personal in its nature, and therefore determined by the death of the party, or one which the personal representative could complete as well as the deceased could have done." 6 R. C. L. p. 1010.
The agreement on which this claim against Mr. Ford's estate is made was entered into simultaneously with the land contract between Drouillard and DeWitt. It therefore is part and parcel of a consummated contract and not one to be executed in the future. Deferring the payments which otherwise would have become due under the land contract constituted a valid consideration for Mr. Ford's agreement. The agreement, being in writing, *Page 270 complied with the statute of frauds (3 Comp. Laws 1929, § 13417). The mere formality of indorsing DeWitt's notes when the respective payments fell due amounted to no more than additional written evidence of Mr. Ford's liability. It would not have been a new contract. Execution by him of such notes neither would have increased nor decreased the liability he had already assumed in writing. Aiken v. Peoples, 253 Mich. 161. The obligation incurred is one that can be fully performed by the representatives of his estate. Therefore, had it been established by competent evidence, it should have been allowed as a valid claim against the estate.
However, I concur in affirmance for the reason set forth in the following portion of the trial judge's opinion:
"A contract for the sale of land must be in writing. Under plaintiff's claim that he is trying to collect interest due under these land contracts from defendant, he is thereby seeking to enforce the land contracts. These land contracts which plaintiff is seeking to enforce are in writing. Plaintiff has in no way claimed that he cannot produce them, nor is their nonproduction accounted for. * * *
"There is a statute in this State, 1 Comp. Laws 1915, § 4275 (1 Comp. Laws 1929, § 3647), forbidding the enforcement of any land contract unless the mortgage tax required by law is paid thereon. Plaintiff has apparently not paid such taxes. This no doubt in part accounts for the failure to offer them in evidence.
"If plaintiff is permitted to prove the contents of such land contracts by parol evidence, he is thereby allowed to enforce such contracts, not only in violation of the best evidence rule, but contrary to the intent and purpose of this statute. * * * *Page 271
"The mere fact that some oral calculations may be necessary to ascertain the amounts claimed to be due does not remove the necessity of producing the best evidence of the alleged contract or liability."
Claimant did not introduce the land contract in evidence or establish by other competent testimony the amount of his claim. Disallowance of the claim necessarily resulted, and is affirmed.
BUTZEL, C.J., concurred with NORTH, J.