In Brown v. Pforr, 38 Cal. 550, the owner of a piece of real estate agreed to pay a broker a stipulated sum if he would find a purchaser for it at a specified price within one month. Before the expiration of the month within which the broker by the terms of the contract was allowed to find a purchaser, he found one who was willing to pay the specified price for the property. But the owner had previously revoked the power of the broker to sell it, and refused to accept the offer, which if the agreement had not been revoked would at least have entitled the broker to the stipulated commission. The Court, however, held that the owner of the property had a right to revoke the power to sell at any time before a purchaser was found without incurring any liability to pay the broker anything. The Court said: “ It is a general rule that an agency, whether to sell land, or to do any other act, unless coupled with an interest, or given for a valuable consideration, is revocable at any time.”
An agency not coupled with an interest does not survive the death of either the principal or agent, and the principal upon which the rule is founded, “applies a fortiori to the death of the agent.” (Story on Agency, § 490.)
The defendant’s intestate in this case acquired no interest in the property which the plaintiff authorized him to sell within a specified period. (Hunt v. Rousmanier, 8 Wheat. 174, 203 ; Travers v. Crane, 15 Cal 12, 19; Story on Agency, § 489.)
The building of a house by the plaintiff, and the superintendence of the building of it by the defendant’s intestate, together with the security which the latter gave for performance on his part, doubtless constituted a consideration for the contract which would have prevented either of the parties from revoking it without the consent of the other while both were living. But that would not prevent its.revocation by the death of either. A power coupled with an interest, and none other survives the death of either the principal or agent. A contract of agency based upon a consideration does not survive the death of either. I do not understand it to be claimed that if the defendant’s intestate had died before any *48thing had been expended in improving the property, the contract would have survived his death. And yet that expenditure was a part of the consideration of the contract, and gave defendant’s intestate no more interest in the property than he would have had under a mere naked power to sell for a stipulated commission. In no sense could that be held to be an interest in the property itself.
When said intestate died, two months remained of the time within which he was authorized to sell the property at or above the price specified in the contract, and it is claimed that the defendant, as administrator of the estate of the deceased, might have sold said property the same as his intestate might, if he had lived. An administrator may, by leave of the Probate Court, sell any property belonging to the estate of his intestate. But the property which it is claimed he might have sold in this case did not belong to said estate. The estate had no interest in it. A sale of the entire interest of the estate in said property would have transferred nothing to the purchaser. The administrator could not obtain authority from the Probate Court to sell property in which the estate had no transferable interest. An order authorizing the administrator of the estate of B. to sell the property of J. would be something new in probate proceedings.
It therefore seems to be sufficiently evident that the contract which the defendant’s intestate entered into with the plaintiff was one for personal services, which could only be performed during the life-time of the party contracting, and was subject to the implied condition that he should be alive to perform them, and that he having died before performance and before the expiration of the time within which he was to perform, his administrator is not liable in an action for the breach of the contract occasioned by his death.