The contract set out in the prevailing opinion is of a threefold character.
1. It is a personal contract by which the plaintiff engaged the skill and ability of the deceased, in his life-time, to superintend the construction of a dwelling-house.
*492. It is a contract of agency, whereby the plaintiff appointed the deceased as his agent or broker to sell the premises, after the construction of the dwelling-house, for commissions contingent upon making a sale for a specified amount within a certain time.
3. It is a contract of guaranty, by which the deceased, who was the superintendent and agent .or broker of the plaintiff, covenanted that the premises would be sold within the time specified in the contract for a sum of money sufficient to pay the plaintiff the computed value of his property and the money expended in the construction of the dwelling-house and interest at the contract rates, reserving for himself, out of any surplus, commissions for making the sale.
Before the contract time for making the sale had expired the decedent died; and his death had its legal effect upon the contract and its several parts. As to the first part, the contract terminated with his death; for, being a contract for personal services, it was unassignable in his life-time, and did not survive his death. Actio personales moritur cum persona. No cause of action therefore existed, nor, indeed, is any claimed against the estate of the deceased upon this part of the contract; for he had, in fact; before his death, performed it to the satisfaction of the plaintiff.
As to the second, the death of the deceased terminated the relation of principal and agent, or broker, for the sale of the premises, and also the authority to sell; for as such authority was a personal confidence, it is not to be presumed that the principal himself intended that it should pass to the representative of the deceased agent, unless there is some special stipulation in the contract itself to that effect. No such stipulation is to be found in the contract. The administrator of the deceased had, therefore, no authority whatever, under the contract, to sell the property of the plaintiff. The plaintiff had never employed him for that purpose; and it was no part of his administrative duty to sell property which does not belong to the estate. How could the administrator make such a sale ? From whom has he received any power or authority to sell ? Certainly not from the principal of the deceased agent. Certainly not from his intestate—the deceased *50agent of the principal. And yet, it is sought to create a liability against the estate of his intestate on account of a sale which, in his life-time, the intestate had contracted to make, but which he, by his death, was prevented from making, and which, after his death, his administrator had neither power nor authority to make. I can not see how the estate of the deceased can be made liable for a failure to sell in his life-time, before the time limited in the contract, when performance was rendered impossible. Estates of deceased agents are liable only in the matters of their agency, where the, agent has been guilty of negligence or misconduct, or misappropriation in the course of the agency, or where a sale has been partially made by him in his life-time and remained incomplete at his death. Nothing of that sort is claimed in this case. There was neither negligence nor misconduct; there was no misappropriation in the course of the agency. No sale had been partially made which remained incomplete at the time of his death. The agent was prevented by death from making a sale.
And as to the guaranty that a sum of money would be realized upon a sale of the property sufficient to pay the plaintiff the value of his land and improvements, and interest on the value and commissions of sale, the same legal effect followed the death of the agent within the time limited for making a sale. The obligation of guaranty was discharged; for the act of God, which resulted in the death of the agent, prevented a sale of the property, and, of course, prevented performance of any guaranty dependent upon the sale. A Court will never presume an intention to require performance of any contract, where performance is prevented by an act of God.
Unquestionably, an absolute promise, without exception or qualification, that a certain thing shall take place, which is neither impossible nor unlawful at the time of the promise, binds the person to perform, unless the situation of the person so changes as to render performance impossible. That was just the condition of things at the death of the agent. His authority to make a sale of the plaintiff’s property terminated by his death. It became impossible for him to do what he had undertaken to do. And his guaranty dependent *51upon a sale was revoked by the same cause which rendered the sale impossible.
In my judgment the plaintiff has no claim arising out of the contract which can enforced against the estate of the deceased.