Pedrick v. First Nat. Bank of Ripon
Decision Date | 05 October 1954 |
Citation | 267 Wis. 436,66 N.W.2d 154 |
Parties | Samuel M. PEDRICK, Appellant, v. FIRST NATIONAL BANK OF RIPON, a National Banking corporation, Respondent. |
Court | Wisconsin Supreme Court |
S. M. Pedrick, Ripon, in pro. per., for appellant.
Nesbitt & Kay, Ripon, for respondent.
The demurrer admits the material allegations of the amended complaint.
The bank submits that the amended complaint is defective because it does not plead acceptance of its offer by the plaintiff or that there was consideration for its promise of employment. Plaintiff's performance of the act which defendant had solicited, as alleged in his amended complaint, was both in consideration of the offer and an acceptance of it. '* * * Where A promises B to pay him a sum of money if he will do a particular act and in consideration thereof, and B does that act, the promise thereupon becomes binding, although B at the time of the promise does not engage to do the act. * * *' 12 Am.Jur., p. 573, Contracts, sec. 79. Except for other considerations to be discussed later we do not doubt that a contract which bound the bank to employ plaintiff came into existence upon the execution of the will, contingent only upon the death of Rimpler without having revoked the will.
But we consider that the presence of sec. 310.25, Stats. establishes such a contract as one which is contrary to public policy. The material part of that statute directs that when a corporation is named as executor of an estate the nearest of kin who receives any interest in the estate or the party receiving the largest amount from the estate shall name the attorney who shall represent the estate in all proceedings, unless good cause is shown why this should not be done. The complaint charges that the corporation agreed to employ him to conduct the probate of the estate. The statute takes the power to make such an appointment away from the corporate executor or administrator and lodges it elsewhere. '* * * An agreement is against public policy if it * * * violates some public statute, * * *.' 12 Am.Jur., p. 663, Contracts, sec. 167. Id., pp. 662-663. (Italics ours.) Unquestionably, according to the complaint the parties here stipulated for something inhibited by the law, namely, the appointment by a corporate executor of the attorney for the estate. Agreements against public policy or prohibited by public law '* * * cannot be enforced by one party against the other, either directly by asking the court to carry them into effect or indirectly by claiming damages or compensation for breach of them. * * *' 12 Am.Jur., p. 715, Contracts, sec. 209.
Plaintiff seeks to avoid the effect of the statute by asserting that it is unconstitutional because it denies equality before the law, as guaranteed by sec. 1 art. I, Wis. Const. and the 14th amendment, U.S. Const. Obviously, the statute gives different powers to, and imposes different restrictions on different executors depending on whether they are individuals or corporations, although their duties in other respects concerning the administration of estates are identical. The question is whether the separate classification is based upon a substantial distinction between them. In Phipps v. Wis. Cent. R. Co., 1907, 133 Wis. 153, 113 N.W. 456, the statute which subjected the corporation to the discovery examination of its former employees but relieved individual employers from this burden was held void because the court could not discover a substantial distinction between them in pursuing their remedies in court.
Individuals, who exist in great numbers, do not singly seek or control any substantial volume of executor or administratorships, whereas the comparactively few legally eligible corporations do solicit and obtain a large volume of this business. Unless otherwise restrained, this tends to...
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