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District Court of Appeal, Third District, California.


Civ. 5753.

Decided: September 29, 1937

Charles L. King, of Gridley, for appellant. T. F. Peterson, of Crescent City, for respondent.

This action was brought against defendant, as executor, for services alleged to have been performed by plaintiff for the deceased during his lifetime. The court, sitting without a jury, awarded judgment for the plaintiff, and, after a denial of the motion for a new trial, this appeal is brought from the judgment and order.

Within the time allowed by law plaintiff verified and presented a claim against the estate of Hermann E. Katzer by filing the same with the county clerk. The claim not having been approved within ten days by the executor, the plaintiff elected to deem such failure to act upon the claim as a rejection thereof, and brought this action upon such rejected claim. The claim so filed was in the following words and figures:

“For services in caring for deceased during his period of illness, consisting of taking care of all business affairs, cooking and carrying meals to said deceased, daily delivery of mail, and transporting to and from places desired by deceased, and making all arrangements for medical and hospital care.

Plaintiff, suing upon this claim, relied, at the trial, upon his second and third causes of action. The second cause of action alleged a continuing contract for the period beginning January 1, 1930, and ending at the date of death, August 15, 1935, and that decedent promised to devise to plaintiff all of his estate or in lieu thereof to devise to plaintiff a sum equal to the reasonable value of plaintiff's services.

The third cause of action alleged services performed during the period set forth in the claim of the value of $2,820, and that decedent promised and agreed to pay the plaintiff upon termination of said services or upon demand.

The answer filed to this complaint denied the material allegations of the causes of action, and in addition pleaded the statute of limitations and the statute of frauds.

The court, sitting without a jury, found that the decedent requested plaintiff to render such services to him as he might require continuously for the remainder of the life of decedent, and agreed to pay therefor by giving and devising to him all of his estate, or in default thereof that he would devise and bequeath the plaintiff a sum for the reasonable value of plaintiff's services, and that, pursuant to said request and agreement, plaintiff rendered personal services and performed labor for decedent continuously from the 1st of January, 1930, to and including the 15th day of August, 1935.

The court further found that Halkett at the time of his death failed and neglected to give or devise to plaintiff all or any part of his estate nor to give to plaintiff a sum equal to the reasonable value of his services, nor any sum whatsoever, and found that the reasonable value of such services rendered by plaintiff to decedent was in the sum of $2,820, and ordered judgment therefor.

The court also found in favor of the allegations in plaintiff's complaint to the effect that the said decedent, during his lifetime, became indebted to plaintiff in the sum of $2,820 for work and labor performed and services rendered to decedent at his special instance and request, which services were agreed to be, and which were in fact, continuous from the 1st day of January, 1930, to and includng the 15th day of August, 1935, and agreed to pay the plaintiff at the termination of said services or upon demand.

As grounds for reversal appellant contends the court erred in permitting evidence as to services performed more than two years prior to the death, claiming the same was barred by section 339, subdivision 1, and section 337, subdivision 2, of the Code of Civil Procedure, as amended by St. 1933, p. 2116; and relies upon the case of Etchas v. Orena, 127 Cal. 588, 60 P. 45, 46. The creditor's claim in Etchas v. Orena, supra, read as follows:

In considering the claim the court there said:

“No contract is set forth as to when the wages were to be paid, and in such case the presumption is that the hiring was by the month. Civ.Code, §§ 2010, 2011.

“It appears, therefore, on the face of the claim as presented, that all that part of it was barred by the statute except for services that became due on or after January 19, 1894. If barred by the statute of limitations, the claim could not be allowed by the executor or the judge. Code Civ.Proc., § 1499. * * *

“The claim, as presented and passed upon by the executor, was the foundation of the plaintiff's cause of action. She could not come into court and allege and prove any other or different cause of action from that stated in the claim. The executor was entitled to have the claim presented in sufficiently intelligent form to enable him to pass upon it legally.”

In the Estate of Steuer, Deceased, 77 Cal.App. 584, 247 P. 211, the court, in considering a claim general in character as here involved, held that the claim showed upon its face to be a monthly charge for services rendered, and that portion of the claim covering services rendered beyond the two–year limitation of the statute was barred.

Respondent relies upon the case of Warder v. Hutchison, 69 Cal.App. 291, 231 P. 563, and contends under the case as stated by him he might prove either an express or implied contract and could not be compelled to elect on which count he relied.

Examination of that case shows, however, that the claim as filed against the estate was full and complete. In part it read as follows:

“For board, lodging, washing, improvements, etc., $2000.00, based upon the following:

“On or about December 15, 1907, the above named deceased, David H. Hutchison, and W. R. Warder and Vinnie Warder, his wife, these claimants, entered into an oral agreement by which said David H. Hutchison agreed that in consideration of board, lodging, and washing to be furnished to and done for him by these claimants, and to make his home with said claimants during the lifetime of said David H. Hutchison, he, said David H. Hutchison, would convey to these claimants, that certain property near Oleta, Amador County, California, known as the ‘Hutchison Ranch’, and particularly described as follows, to–wit: (Here follows a particular description of the land). That in pursuance of said agreement and not otherwise, said deceased made his home with these claimants upon said premises and these claimants there furnished said deceased with said board and lodging and washing continuously from on or about December 15, 1907 to February 22, 1923, on which last mentioned date the said David H. Hutchison died intestate.”

The court there stated that there was no material variance between the claim presented to the administrator and the cause of action stated in the complaint, and that the claim itself set forth sufficient facts upon it to base either an action on the contract or one for the reasonable value of services performed.

Nowhere in the creditor's claim before us is there alleged a promise to pay at the termination of the services or any other allegation that will take the claim out of the bar of the statute of limitations. The presumption is the hiring was from month to month and therefore the two–year statute of limitations would apply.

The case of McGrath v. Carroll, 110 Cal. 79, 42 P. 466, 468, is quite similar to the case at bar. There the claim merely set forth certain items of moneys advanced to deceased from December, 1879, to September, 1882. The claim was rejected. By the complaint plaintiff set up money that was received and held by decedent “in trust for the use and benefit of plaintiff.”

Defendant, by demurrer and answer, pleaded the statute of limitations. The court said:

“No action can be brought by the holder of such a claim unless it be first presented (Code Civ.Proc., §§ 1493, 1500), and every claim must sufficiently indicate the nature and amount of the demand, to enable the executor and judge in probate to act advisedly upon it. Henderson v. Ilsley, 11 Smedes & M. [(Miss.) 9], 11 [49 Am. Dec. 41]. As no holder of a claim may maintain an action upon it unless it has first been presented, it follows as a necessary sequence that the only action the holder may maintain is one founded upon the claim presented. Lichtenberg v. McGlynn, 105 Cal. 45, 38 P. 541.

“In this case the claim presented was a simple demand for money lent, accompanied by a demand for legal interest, with which such moneys are charged. No hint or suggestion is made of a trust, and the debts set out were all long barred by the statute of limitations. Upon such a claim the executors had no discretion. Their plain duty was to reject it as they did. Code Civ.Proc., § 1499.

“In the complaint for the first time there is a plea of trust (without disclosure of its terms even then), and the defendant executors are compelled to meet a cause of action unsupported by the claim presented, and a claim founded thereon which had never been presented, and upon which they had never been called to pass.

“They did this by pleading the statute of limitations, which was a good plea directed against the rejected claim that plaintiff was compelled to set forth in his complaint. They might also have pleaded the variance and nonpresentation in abatement, but, under the circumstances, we are of the opinion that the point is sufficiently presented by the plea of the statute, and this seems to have been in the mind of the court when it said: ‘Treated as a simple money demand, it would clearly be barred on its face, inasmuch as the party did not commence a suit while Carroll was alive, but until after his death. * * * You have presented a demand and claim against the estate, and that makes your cause of action.”’

It is claimed the evidence adduced in support of the allegations of the complaint based upon this claim fails to substantiate the allegations of the complaint, and that the evidence is insufficient to support the findings of fact, but, in view of the fact that here the claim as filed establishes its own invalidity, we need not discuss this point.

The judgment is therefore reversed, and the cause remanded.

Mr. Presiding Justice PULLEN delivered the opinion of the court.

We concur: THOMPSON, J.; PLUMMER, J.

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