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District Court of Appeal, Second District, Division 1, California.


Civ. 11259.

Decided: June 10, 1937

George W. Downing, Jr., and Carey McWilliams, both of Los Angeles, for appellant. Edwin J. Miller and Ralph W. Miller, both of Los Angeles, for respondent.

This is an appeal by defendant, as executor of the will of Ida Fricke, deceased, from a judgment that was rendered on a creditor's rejected claim against said estate, as well as from an order by which his motion for judgment notwithstanding the verdict was denied.

The essential facts are that in their lifetime August Fricke and Ida Fricke (husband and wife), who were engaged in the bakery business in the city of Los Angeles, promised to Meta Klatt, then 17 years of age, that, if the latter would work for August and Ida Fricke “as long as they desired her to do so,” in compensation for such services, in addition to being furnished by the Frickes with board, lodging, clothing, and “spending money,” on the death of the survivor of August Fricke and Ida Fricke, all the property which had been accumulated by them “would belong to” Meta Klatt, “and that the survivor of said community would leave the same by deed or will to her.” In such circumstances, Meta Klatt was induced to and did perform all services that were required of her by the Frickes for a period thence next ensuing of approximately 6 1/4 years, at the expiration of which time, with the consent and approval of August Fricke and Ida Fricke, she was married to one Long. Thereafter, excepting occasionally, when she was paid $3 per day for her services, she performed no labor for the Frickes.

In the course of about 16 years after Meta Klatt had left their said service, first August, and then Ida Fricke, died. No provision in any way having been made by either of them for carrying out their original promise that on the death of the survivor of them all their property would go to Meta Klatt, and her asserted claim against the estate of Ida Fricke having been duly rejected by the executor of her last will, Meta Klatt, suing by her married name, instituted an action against the said executor for the value of the services which she had rendered as aforesaid, which action resulted in a judgment in her favor. It is from that judgment, as well as from an order by which defendant's motion for judgment in his favor, notwithstanding the verdict, was denied, that the instant appeal is taken.

It is conceded by respondent that, in accord with appellant's contention, an oral agreement to devise or to bequeath any property or to make any provision for any person by will is unenforceable, “whether the action be either for a breach of an oral contract to make a will, for specific performance of such contract, or for damages for the breach of such a contract”. Section 1624, Civ.Code; section 1973, Code Civ.Proc. It is unnecessary to decide, and this court does not undertake to decide, whether that concession on the part of respondent is a correct and all–inclusive statement of the law. But, without regard to respondent's position in that connection, by an examination of the allegations in her complaint, it is disclosed that the action was not of the exact character which is indicated by the provisions of the statute, but, to the contrary, was “on the quantum meruit for the reasonable value of plaintiff's services rendered.”

In that regard, in effect, it is provided, both by section 1624, subdivision 6, of the Civil Code (enacted in 1905) and by section 1973, subdivision 6, of the Code of Civil Procedure (enacted in 1907), that “an agreement which by its terms is not to be performed during the lifetime of the promisor, or an agreement to devise or bequeath any property, or to make any provision for any person by will,” is invalid, “unless the same, or some note or memorandum thereof, is in writing and subscribed by the party to be charged or by his agent.” Since the date of the enactment of subdivision 6 of section 1624 of the Civil Code, the courts have experienced no great difficulty in arriving at the conclusion that, ordinarily, an oral agreement of the kind that in the instant matter is shown to have existed was unenforceable; but beginning with the case of Mayborne v. Citizens' Trust & Savings Bank, 46 Cal.App. 178, 190, 188 P. 1034, 1039, and thereafter continuing throughout the decisions of the appellate courts of this state, it has been ruled that the provisions of the statute do not apply “to a case like this for recovery upon a quantum meruit.” Warder v. Hutchison, 69 Cal.App. 291, 231 P. 563; Lauritsen v. Goldsmith, 99 Cal.App. 671, 279 P. 168; Burr v. Floyd, 137 Cal.App. 692, 31 P.(2d) 402; Zellner v. Wassman, 184 Cal. 80, 193 P. 84. See, also, Wax v. Adair, 16 Cal.App.(2d) 393, 60 P.(2d) 904; Turell v. Anderson, 16 Cal.App.(2d) 445, 60 P.(2d) 906.

Appellant's suggestion, that no express contract such as is outlined by the allegations of the complaint was proved, is of no avail. The record herein discloses the existence of sufficient evidence to establish the conclusion that such a contract was entered into by the respective parties; but, even assuming the possible absence of such a situation, in each of several cases to which attention hereinbefore has been directed, the principle is announced that even an implied promise to pay the reasonable value of the services performed will suffice.

Without an abandonment of either of his prior contentions, appellant next urges the point that “the recovery must be upheld, if at all, upon the quantum meruit theory, and the rules of limitation governing such actions are the ones which apply.” In that connection, it is conceded that, in an action such as that here involved, the cause of action accrues on the termination of the services that may have been rendered, with the result that the 2–year limitation on the commencement of such an action, for which provision is made in section 339 of the Code of Civil Procedure, should be given application. Such a rule is indicated in each of the cases of Lauritsen v. Goldsmith, 99 Cal.App. 671, 279 P. 168, Burr v. Floyd, 137 Cal.App. 692, 31 P.(2d) 402, and in Seib v. Mitchell, 10 Cal.App.(2d) 91, 52 P.(2d) 281, where other California cases are cited as authority therefor. But it happens that in each of such cases the performance of services was practically continuous from the time when the agreement was entered into between the parties, at least until the date of death of the person who had promised the payment of compensation for such services. In that regard, it may be remembered that within the facts herein it appears, not that the agreed services were thus continuous; but, to the contrary, that with the consent and the approval of both the Frickes, Meta Klatt married one Long, and that thereafter, for a period of 16 years, or until the death of Ida Fricke, who was the survivor of said promisors, aside from the occasional rendering of services for which she was fully compensated, Meta Klatt performed no services in accordance with the terms of the agreement. In nearly all cases wherein is recognized the general rule to the effect that at least until the death of the promisor of compensation has occurred, no cause of action has arisen in favor of the person who has been performing the services––the reason for the existence of such rule is declared to be that the promise being that compensation would be made or provided by deed or will, until both the fact of the death of the promisor, together with the fact that he has failed to keep his said promise, can be established––in the absence of a prior repudiation of the contract, no breach of such contract has occurred. And assuming the legal soundness of such reason, it becomes clear that it is as applicable to the facts herein as it is in those cases in which the service is continuous to the date of the death of the promisor of compensation; that is to say, by the terms of the agreement between Meta Klatt, and August and Ida Fricke, the latter parties agreed to compensate the former party either by deed or by the will of the survivor of the latter; and therefore that August and Ida Fricke had all the time up to the date of the death of the survivor of them within which to fulfill the said promise; and not until such death had occurred could it be determined that the contract had been breached. Upon the happening of such breach, and not before, the cause of action accrued; and the action having been instituted within the time limited by the provisions of the statute (section 339, Code Civ.Proc.), it follows that appellant's point in that regard is not well taken.

The next point that is suggested by appellant is that the evidence was insufficient to support the judgment that was rendered in plaintiff's favor for the sum of $11,750. No useful purpose would be served by a review of the evidence that was presented on that issue. Of itself, and without here taking into consideration certain permissible offsets thereto, this court is convinced that, from the evidence which was placed before it, the jury was authorized to return the verdict of which complaint is made; from which it follows that appellant's additional objection to the verdict in respect to the amount thereof, to wit, that it was the result of passion and prejudice, cannot be sustained.

Appellant registers further complaint regarding the conduct of the trial of the action, to the effect that prejudicial error was committed, in that, over the objection of defendant, plaintiff was permitted to introduce evidence of the value of the estate. Although it may be possible that, if the action had been based on breach of contract, or for damages (if such an action were maintainable on such ground), the questioned evidence might have been admissible on the theory that the parties to the agreement had agreed that, for the services which Meta Klatt was expected to perform, she would be compensated with the entire estate which might be left by the survivor of the Frickes (O'Brien v. O'Brien, 197 Cal. 577, 588, 241 P. 861; Roy v. Pos, 183 Cal. 359, 366, 191 P. 542; Morrison v. Land, 169 Cal. 580, 590, 147 P. 259; 71 Cor.Jur. 439), it is clear that in an action in quantum meruit the financial condition of the person for whom services may have been performed can form no satisfactory basis for a determination of the reasonable value thereof. Had the parties agreed upon the amount of a specified legacy that would be left by the survivor of the Frickes to Meta Klatt, evidence of that situation might have been somewhat, albeit vaguely, indicative of the actual value of the services which the parties had in mind (Offeman v. Robertson–Cole Studios, 80 Cal.App. 1, 251 P. 830; Reynolds v. Jourdan, 6 Cal. 108, 111; Clark v. United States, 95 U.S. 539, 24 L.Ed. 518), provided, of course, that they also had in mind the length of time that thereafter probably would ensue before the survivor of the Frickes had deceased. It so happened that Meta Klatt actually worked for the Frickes for a total period of 6 1/4 years. The estate of Mrs. Fricke was inventoried at the net sum of approximately $23,500. To say that it was agreed between the respective parties to the agreement that, at the death of the survivor of August and Ida Fricke, Meta Klatt would become the possessor of the entire estate of such survivor, is not the equivalent of saying that for a specified period of 6 1/4 years of work it was agreed that Meta Klatt should be paid $23,500. It is manifest that at the date when the agreement was made no one knew the length of time thereafter that the survivor of the Frickes would live; nor did any person know but that Meta Klatt would be the first to die. Any one of them thereafter might live for 1 year, or possibly for 50 years. Everything in that line was not only undetermined, but likewise was indeterminable. On the very next day following the date of the agreement, had both the Frickes met with an accident which resulted in the immediate death of both of them, in an action in quantum meruit to recover the reasonable value of the one day's services of Meta Klatt, it would seem unreasonable to contend that those services were worth $23,500 because that was the implied value that had been placed thereon by the respective parties to the agreement. Furthermore, on the trial of the action, no showing was made regarding the financial worth of the Frickes at the date when the agreement was made. For aught that appears in evidence, they then may have been insolvent, or their financial worth may have been much more than it was when Mrs. Fricke died. They did not then know for what length of time the survivor of them would live; nor, even assuming that they then were worth a specified sum of money, did they know that they would not thereafter suffer such heavy financial reverses that by the time the survivor came to die the estate would not be bankrupt. In such a state of uncertainty, to admit evidence of the value of the estate left by Ida Fricke, for the purpose of establishing the reasonable value of the services that were performed by plaintiff, was erroneous. Lisk v. Sherman, 25 Barb. (N.Y.) 433, 439; Clark v. Gilbert, 32 Barb. (N.Y.) 576.

Presumably based upon evidence which had been introduced relative to the value of the estate which had been left by Ida Fricke, together with other evidence that related to the agreement made by the parties thereto, in three separate instructions the jury was told, respectively, that if it so desired it might (1) “adopt as the reasonable value of plaintiff's services, the value of the property of which said survivor died possessed, if such value is shown by the preponderance of the evidence”; (2) “* * * adopt * * * as the value of said services, the value which the parties themselves fixed, if shown by the evidence, viz., the value of the property so agreed to be awarded plaintiff by August and Ida Fricke, if the evidence shows such value, as the reasonable value of plaintiff's services”; (3) “adopt * * * the value of services which the parties themselves placed on said services, if shown by the evidence, and fix the value of said services at what the parties themselves fixed said value of services to be, viz., the sum which you find from the evidence to be the value of the property at the time of the death of the said Ida Fricke.”

Aside from that which might be termed a proper and deserving criticism for the repetition (and the resulting emphasis) of the instructions regarding the province of the jury with respect to a determination by it of the value of plaintiff's services, each of the cited instructions was subject to the further objection that in reaching a verdict in favor of plaintiff it was authorized to take into consideration certain evidence with reference to the value of the estate that had been erroneously introduced. Although from the fact that the appraised net value of the estate was approximately $23,500 and the amount of the verdict was $11,750, it may be that, instead of awarding to plaintiff the full value of the estate, the jury may have concluded that one–half the value of the estate would be a sufficient compensation for her services––nevertheless, had the evidence respecting the value of the estate not been introduced, it might well be questioned whether the jury would have placed as high a value on plaintiff's services as in the circumstances was placed thereon. It results that, both by reason of the admission of the evidence to which reference has been had and by the said instructions, defendant was prejudicially affected.

But with respect to the trial proceedings, appellant further complains that, by a ruling which was made by the trial judge, defendant was precluded from introducing evidence which, if believed by the jury, in all probability would have resulted in a substantial reduction of the amount of the verdict that was awarded to plaintiff. In that regard, it appears that plaintiff had introduced evidence respecting the value of the services that had been performed by her, which evidence, without taking into consideration the value of the board, lodging, clothing, and “spending money” that had been furnished by August and Ida Fricke to plaintiff, consisted in a showing that for an eight–hour day such services as were performed by plaintiff were reasonably worth as much as $35 per week, with extra time to be paid for at the same rate of compensation. To partially offset the amount per week to which plaintiff might have been entitled, defendant “proposed to put in evidence what these items (food, shelter, clothing and ‘spending money’) so provided by the deceased, were reasonably worth.” The trial court sustained plaintiff's objection to the introduction of that line of evidence. This court is of the opinion that that ruling constituted prejudicial error. In the first place (if practicable), plaintiff's evidence with respect to the value of services that were rendered by her should have taken into account the several benefits which she had received from August and Ida Fricke. Assuming that plaintiff's services were worth $35 per week, with added compensation for overtime, nevertheless, as a credit on account of such value, in effect, she had been paid various sums of money, uncertain in amount, by having been furnished with room, board, clothing, and a certain amount of money called “spending money.” In attempting to reach a determination of the amount, if any, for which plaintiff should recover a judgment, defendant should have been accorded the right to show the reasonable value of the room, board, and clothing, as well as the amount of money which plaintiff had received during the entire time that she worked for August and Ida Fricke. In the continuous course of 6 1/4 years, the value of such items would have aggregated a considerable sum, and to deny to defendant the right to any credit on account thereof would be to unjustly deprive the executor of the will of Ida Fricke of that to which in law he would have been justly entitled. In the same connection, and for similar reasons, this court also is of the opinion that, contrary to the ruling made thereon by the trial court, defendant should have been permitted to introduce evidence for the purpose of establishing the amount of wages which, during the period of time that was embraced within the 6 1/4 years of such employment, was paid by other employers to their respective employees who at that time were employed and who performed services in the same, or in a similar, position as or to, respectively, that in which plaintiff was employed. 16 Cal.Jur. 991; Shade v. Sisson M. & L. Co., 115 Cal. 357, 368, 47 P. 135.

It becomes unnecessary to rule upon either of the additional specifications of error presented by appellant.

The judgment is reversed; and the appeal from the order by which defendant's motion for judgment, notwithstanding the verdict was denied, is dismissed.

HOUSER, Presiding Justice.

We concur: YORK, J.; DORAN, J.

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