dissenting.
The pertinent facts in this case are clearly and succinctly stated in the Court’s opinion. However, I am unable to agree with certain of the legal conclusions which the Court draws from the facts in evidence. Particularly I disagree with the conclusion that the words “or associates” in the contract give to the administratrix of Mr. Peaseley’s estate the legal right to collect for the estate the commissions for sales made and commissions earned after his death.
The record discloses the manifold duties under the contract Mr. Peaseley was obligated to perform in return for a commission of ten cents per ton on all coal delivered by rail from the defendant’s mines in West Virginia to the storage bins of the Duke Power Company in Charlotte, North Carolina, for use in the production of electric current. The sales agreement provided that the coal should meet certain tests and specifications as to quality and characteristics, including the moisture content, the ash and sulphur content, the size, softening temperature, and grindability. Deliveries were required at the proper time and in the quantity and quality called for by the purchaser. These requirements demanded the constant attention of the sales broker.
It is to be expected that a contract involving nearly a million tons annually would of necessity generate certain differences between the producer, the transporter, and the consumer. Settling of these differences was the function of Mr. Peaseley. He was an expert in the field. For the year preceding his death he negotiated sales and deliveries of more than 900,000 tons of coal. Did he have “associates” in the operation who were entitled to continue the contract in his name, render the services which he had contracted to render, and as associates are entitled to carry on his contract?
*608After the oral contract was negotiated, the coal company reduced it to writing and forwarded it to Mr. Peaseley at Charlotte for his approval. The contract provided that for his services in negotiating the sales and in performing the manifold duties involved in the deliveries of coal in the quantity and quality and at the intervals required by the purchaser, he was to receive ten cents per ton. After receiving the written memorandum of the contract, he returned it to the coal company and asked that the words “or associates” be inserted in the contract after his name. The Court says these words “or associates” exempt this contract from the general rule that a contract for personal services terminates at the death of the promissor. “Associates” in a business contract certainly carry the implication that they are in a position to perform the essential obligations required of the named party. “Associates” in a business undertaking mean something more than associates at the bridge table, the cocktail lounge, or the golf course. The added words “or associates” certainly do not imply that Mr. Peaseley had associates in the business at the time. Otherwise, the contract should have said “and associates” and it would have been easy to name them.
There is no evidence in the record that after the contract was entered into, Mr. Peaseley ever selected or included any associates in the operation of the sales agreement. All of the evidence is to the contrary. The evidence discloses that Mr. Peaseley’s office force consisted of Mrs. Martha Byrd, his secretary-bookkeeper, and himself. Mrs. Byrd was employed in 1955 and continued to work in the office in the same capacity thereafter. The evidence does not disclose any change in her status. True, she handled many of the details when Mr. Peaseley was absent and continued to do so as she became familiar with the procedures. She has made no claim of her ability, or of the ability of anyone else, to service the contract in such manner as Mr. Peaseley had been able to do. She testified as a witness in this case: “ . . . I was asked, if during the years 1956 and up until the time of Mr. Peaseley’s death in 1965, whether anybody else assisted him in handling this Mill Power account . . .- other than myself. I answered ‘no’, and that is correct.”
The evidence further disclosed that Mr. Peaseley had a business telephone in his home and when he was away from Charlotte, Mrs. Peaseley answered the telephone and gave such information as to Mr. Peaseley’s whereabouts or the business as she was able to furnish. So that the record discloses that *609never at any time did any person participate in the business other than Mrs. Byrd and Mrs. Peaseley, and they only to the extent here disclosed. It is a fair question to ask, this being so, why did Mr. Peaseley ask for the insertion of the words “or associates” ? I think the record suggests the answer.
Prior to the Second World War, Mr. Peaseley and Mr. Charles J. Stokes operated an incorporated business together. It was not very successful. However, after the war, Mr. Stokes returned, entered business, and occupied an office near Mr. Peaseley in the Johnston Building. Mr. Stokes testified: “During this time I was always in contact with Bob, and, of course, we were always friends. . . . Very close friends. . . . He was my best friend. I would say that I saw him daily during the week. . . . From time to time he showed me his monthly shipments ...” Mr. Peaseley could well have had in mind an invitation to his former partner, Mr. Stokes, to join him in his contract with the defendant. Mr. Peaseley was able to show that a place with a handsome salary was ready for him. The words “or associates” provided Mr. Peaseley with the right to select associates if he so desired.
As further proof that there were no associates, the record discloses that only Mrs. Byrd and Mrs. Peaseley had any connection whatever with the operation and they make no claim to any rights under the contract. Mrs. Byrd testified as a witness. Mrs. Peaseley brought the suit and claimed that all commissions were earned by her husband and belonged to his estate. There were no associates at the time the contract was entered into; none has1 joined thereafter; none was present before the court asserting a claim to commissions. “Associates” were straw men or women. There is no need to go through the motion of knocking them down because they have never stood up. Any “associates” entitled to share with Mr. Peaseley in the obligations and in the benefits of this business necessarily would be his partners or his agents. If partners, the survivors would be required by law, G.S. 59-51, etc. to dissolve and to account. If as agents, the agency would necessarily terminate at the death of the principal.
In this case there is no allegation, no admission, and no finding by the Court that any associate of Mr. Peaseley rendered any service to the Virginia Iron, Coal and Coke Company in connection with the sale and delivery of coal to Duke Power Company after Mr. Peaseley’s death. The coal company made *610no move or acknowledgment that it consented to the continuation by any other person of the work Mr. Peaseley was obligated to do for the company under the contract. Everything indicates the coal company was paying, and well, for Mr. Peaseley’s personal services and his know-how.
A contract for personal services of the type required of Mr. Peaseley is not assignable and does not survive his death. Of course, death makes performance impossible. Justice Ruffin many years ago stated the rule which successive cases have followed: “ [W] here one party covenanted to serve another . . . the death of either party dissolved the contract — such being an implied condition, it was said, in every contract for personal services. . . .” Siler v. Gray, 86 N.C. 566.
The decision of the Court does two things: (1) It continues in effect after death a contract for Mr. Peaseley’s highly personal services; and (2) it requires the Virginia Iron, Coal and Coke Company to donate hundreds of thousands of dollars to the Peaseley estate. The Court thinks these results were within the contemplation of the parties when they entered into the contract of September 6, 1960. I am compelled to disagree and dissent. I vote to reverse the decision of the Court of Appeals and remand the case to the superior court with directions to dismiss the action.
Justice Lake joins in this dissenting opinion.