May v. Moore

99 Mo. App. 27 | Mo. Ct. App. | 1903

GOODE, J.

-In this ease the defendant stood on a demurrer to plaintiff’s petition and judgment went accordingly. The petition states in substance, that on May 28, 1896, defendant James D. Moore, Jr., was appointed administrator of the estate of James D. Moore, deceased, qualified and gave bond as such; that while acting as administrator, to-wit, December 15, 1897, the probate court ordered defendant to give a new bond; that on February 11, 1898, an agreement was made between plaintiff and defendant by which the latter, in consideration of the former’s signing as surety the new bond which the defendant had been required to give, agreed to pay plaintiff as soon as received, one-half of all commissions dne and to become dne defendant as administrator of said estate; that in pursuance of said agreement plaintiff duly signed said bond on. said last-named date and performed all the conditions thereof; that thereafter defendant made several settlements, including his final settlement, in which he received credit for three hundred and twenty-one dollars commissions due him as administrator, one-half of which the plaintiff is entitled to and prays judgment for.

The reasons invoked to establish that the petition stated no case are: first, that the contract was void under ■the statute of frauds because it was not to be performed within one year; second, that it amounts to trafficking in the appointment of an administrator.

Contracts which come within the statute of frauds are those which can not or are not intended to be performed within one year; not contracts which may, within the contemplation of the parties, be performed within one year. Biest v. Ver Steeg Shoe Co., 70 S. W. 1081, 97 Mo. App. (St. L.), 137; Harrington v. Railroad, 60 Mo. App. (K. C.) 223. It is manifest from the petition that the contract between these parties might have been performed within a year; for when it was made the estate had already been in process of administration for about two years and under the statutes an administration need not last more than two years. It is readily perceived that there was no absolute necessity for this contract to run more than a year; hence, it was not within the statute of frauds.

The contract was not one for the appointment of an administrator and had nothing to do with defendant’s •appointment. He had, as stated, already been acting as administrator when the agreement was made. It is true enough that the law forbids trafficking in the appointment of administrators or other trustees, just as it forbids agreements for a consideration to procure the election or appointment of a person to a public office. Porter v. Jones, 60 Mo. 399. But instead of this contract being one to secure the appointment of an administrator, it was made to enable an acting administrator to give a good bond. Persons are allowed to compensate others for undertaking the obligation of suretyship, and paying compensation has grown into a customary mode of making bonds, surety companies being organized for the express purpose of earning money by signing bonds of officials and administrators, as well as various other bonds. What interest the public has that this contract would be hostilé to, we know not. It falls within the principle and within the' scope of the opinion in Greer v. Nutt, 54 Mo. App. (St. L.) 4, which involved similar facts.

The judgment is affirmed.

Bland, P. J., and Reyburn, J., concur.