Louis

— I am fully satisfied with the reasons stated by Commissioner Vanclief, and with his conclusion. It is a general rule that death does not absolve a man from Ms contracts, but there are exceptions as well settled as the rule itself. Contracts of a purely personal nature do not survive. An executor, as such, cannot maintain a suit or be sued for breach of promise. Theo death of a servant within the term of hiring discharges ■ the contract, and no action can be maintained against his executors for its non-performance. The death of the plaintiff within the year would have been a legal excuse from the further performance of his contract, and the effect of death upon the survivor must be mutual. The defendants are prevented by the act of God and the operation of law from continuing the partnership affairs. There are cases which hold that the dissolution of a firm does not discharge the contract; but they are cases in which the dissolution resulted from the act of the parties. The question whether damages can be recovered depends upon the question whether the dissolution resulted from the act of God and the operation of the law, or from the act of the parties.

Hearing in Bank denied.

— This action was brought to recover from the defendants five hundred dollars, alleged to be due the plaintiff as salary for his services as salesman for Elfelt & Co. during the month of December, 1886.

The answer of defendants denies that plaintiff was employed by Elfelt & Co., or by the defendants, for any part of the month of December, 1886, and denies that he rendered any services to Elfelt & Co., or to defendants, during that month.

The plaintiff had judgment for the sum demanded, from which, and from an order denying their motion for a new trial, defendants appeal.

The material facts are, — 1. That cn January 1,1884, and until June 14, 1886, Elfelt & Co., a copartnership composed of A. B. Elfelt, Alfred P. Elfelt, S. Goldsmith, *549 George A. Kohn, and Philip Kohn, were engaged in the wholesale clothing business in San Francisco, generally carrying a stock of merchandise of the value of six hundred thousand to seven hundred thousand dollars; 2. That prior to April, 1884, the plaintiff had been employed by the firm as t 'aveling salesman, at a salary of $350 per month and his expenses; 3. That in April, 1884, he was employed as city salesman, at a salary of six thousand…