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District Court of Appeal, First District, Division 2, California.


Civ. 13154.

Decided: April 30, 1947

James A. Himmel, of San Francisco, for appellant. Phillip Barnett and R. L. Dreyfus, both of San Francisco, for respondent.

This is an action brought to recover upon a creditor's claim against the estate of one Baltasar Corral. In accordance with the provisions of the Probate Code, the plaintiff filed a claim for $5,000 against the estate in the office of the County Clerk of the City and County of San Francisco on March 17, 1944. This claim was never approved nor rejected by the administrator, and on April 20, 1944, the plaintiff commenced an action to recover on the claim. The case went to trial before a jury which found for the plaintiff in the sum of $4,000, and from the judgment entered on the verdict the defendant has appealed.

The claim recites: ‘That on or about the 3d day of December, 1940, claimant and decedent, in his lifetime, entered into an oral agreement that, in consideration of the promise of claimant to marry said decedent at a future date when legally entitled to do so, and in consideration of services rendered, and to be rendered by said claimant, said decedent promised and agreed that, instead of paying claimant in cash for said services current wages, he would leave to claimant all of his property as compensation for the performance of said services, and that he would make claimant the beneficiary of a life insurance policy on his life, in the principal sum of $5,000.00, designating said claimant as beneficiary; that said promises were reiterated and restated by said decedent many times thereafter and that in consideration of said promises, said claimant accepted said offer of marriage aforesaid and agreed to perform certain services on behalf of said decedent, consisting of housekeeping, nursing care and attention, and that said claimant entered upon the performance of said services on or about December 3, 1940, pursuant to said agreement, and performed the same continuously up to the time of the death of said decedent, which occurred about October 13, 1943, and that said services so performed are of the reasonable value of $5,000.00.’

The complaint sets up two causes of action. In the first cause of action it is alleged that on December 3, 1940, an oral agreement was entered into between the plaintiff and the decedent embodying the details set out in the creditor's claim. Full performance on the part of the plaintiff is alleged. It is also alleged that the decedent, who at the time of his death was Third Assistant Engineer on the S. S. Susana, did designate the plaintiff as beneficiary under a life insurance policy of the War Shipping Administration.

The second cause of action is in the form of a common count to recover the reasonable value of services rendered in the sum of $5,000.

Under the provisions of subdivision 3 of section 1880 of the Code of Civil Procedure, the plaintiff could not be a witness in support of her claim. Nevertheless, it appears from the testimony of other persons called as witnesses on her behalf that at the time of the transaction in question she was a woman about forty-five years of age, living with her two grown sons in San Francisco. The decedent had a room of his own next to that of her son in the house which they occupied. He had his meals at the family table and generally made his home with the family. The plaintiff did all of his washing, ironing and mending. He was by occupation a seaman. During the period covered by the claim he sustained a severe back injury in his occupation and was without money. He was sheltered by the plaintiff during this time, and she bought clothes for him and supplied him with money. She also nursed and cared for him while this illness was on him and until he was well enough to go to work again.

The appellant urges as grounds for reversal that the complaint does not state facts sufficient to constitute a cause of action; that the evidence is not sufficient to sustain the verdict; and that the trial court erred in giving and refusing to give certain instructions.

As to the sufficiency of the complaint to state a cause of action, the contention is made that the first count fails to state a cause of action because it alleges a contract which the law requires to be in writing, and that since the second count is based upon the same state of facts, it must fall with the first count. In support of his position the appellant has cited Rose v. Ames, 53 Cal.App.2d 583, 128 P.2d 65, and Hays v. Temple, 23 Cal.App.2d 690, 73 P.2d 1248. These cases hold that it is proper to sustain a general demurrer to a common count separately pleaded in a complaint where the recovery sought on such count is obviously based on the set of facts specifically pleaded in another count but which other count fails to state a cause of action. There is a distinction between a count which fails to state facts sufficient to establish the existence of a contract and one which pleads a contract which is unenforceable because it is not in writing. It is the unenforceability of an otherwise valid contract because it is not in writing that gives rise to the right of relief through the medium of a common count. The law contemplates that one who receives a benefit at the expense or detriment of another should compensate the latter to the extent of the reasonable value of the benefit received. As is said in Winder v. Winder, 18 Cal.2d 123, 127, 114 P.2d 347, 350, 144 A.L.R. 935: ‘It is the settled law of this state that when continuous personal services are performed under an express agreement for compensation upon termination thereof, which agreement is unenforceable because not in writing (§ 1624, Civ.Code; § 1973, Code Civ. Proc.), the reasonable value of the services may be recovered, and that the statute of limitations does not commence to run until the termination of the services, which, in such cases, is usually upon the death of the promisor. Long v. Rumsey, 12 Cal.2d 334, 94 P.2d 146; Zeller v. Wassman, 184 Cal. 80, 193 P. 84; Morrison v. Land, 169 Cal. 580, 147 P. 259; Estate of Hohrer, 160 Cal. 574, 117 P. 672, Ann.Cas.1913A, 479; De Mattos v. McGovern, 25 Cal.App.2d 429, 77 P.2d 522; Burr v. Floyd, 137 Cal.App. 692, 696, 31 P.2d 402; Warder v. Hutchison, 69 Cal.App. 291, 231 P. 563; Mayborne v. Citizens' Trust & Savings Bank, 46 Cal.App. 178, 188 P. 1034.’ To the same effect is Reeves v. Vallow, 16 Cal.2d 95, 104 P.2d 1017. In the cases of Hays v. Temple and Rose v. Ames, supra, relied upon by the appellant, the common counts were based upon the same facts relied on by the plaintiffs to make out a contract. In each case it was held that the count relied upon to establish a contract was fatally defective in that it failed to state sufficient facts to show a contractual relation, and that the common count based upon the same facts must also fall. No claim is made here that the contract could not be enforced if it were written and properly subscribed instead of being oral as alleged.

Contrary to the contention of the appellant, the respondent takes the position that the first count states a good cause of action because she has pleaded the contract out of the statute of frauds by alleging that she has performed everything required by her to be done under the alleged agreement. The import of this allegation has apparently escaped the appellant.

It is well settled that where a person seeks to recover for services rendered and there is a fair and reasonable doubt as to whether he is entitled to recover upon an express or implied contract, he is entitled to plead a claim upon each and to recover according to the proof. This right to state different causes of action to meet such phases of the evidence as may be fairly and reasonably anticipated is recognized in Wilson v. Smith, 61 Cal. 209, where the plaintiff was in doubt as to whether he was entitled to recover upon a common count for the reasonable value of services rendered or whether his rights were fixed by an express contract. He pleaded two causes of action, one upon an express contract and the other upon a common count. The court permitted the case to go to the jury upon both counts, and a judgment for the plaintiff was affirmed on appeal. In Tanforan v. Tanforan, 173 Cal. 270, 273, 159 P. 709, 711, it is said: ‘But when for any reason the pleader thinks it desirable so to do, as where the exact nature of the facts is in doubt, or where the exact legal nature of plaintiff's right and defendant's liability depend on facts not well known to the plaintiff, his pleading may set forth the same cause of action in varied and inconsistent counts with strict legal propriety.’ See Wilkerson v. Seib, 20 Cal.2d 556, 563, 127 P.2d 904; Goldwater v. Oltman, 210 Cal. 408, 423, 292 P. 624, 71 A.L.R. 871; Cowan v. Abbott, 92 Cal. 100, 28 P.2d 213; Weintraub v. Soronow, 115 Cal.App. 145, 1 P.2d 28; Van Lue v. Wahrlich-Cornett Co., 12 Cal.App. 749, 108 P. 717. A plaintiff who is not permitted to be a witness in her own behalf under the provisions of subdivision 3 of section 1880 of the Code of Civil Procedure may well be doubtful as to what course the litigation may take, and is entitled to plead her case in as many counts as she may reasonably expect the evidence to support.

Where two or more counts are so pleaded the plaintiff is entitled to introduce evidence upon each and all of his causes of action and, after hearing all of the evidence, the decision as to which of them is sustained is a matter for the judge or jury. Tanforan v. Tanforan, supra. If one count is not affected by error and there is substantial evidence to support a verdict with respect to it, it is immaterial that there may have been errors committed in connection with another count or that there is not sufficient evidence to sustain a verdict as to such other count. Shields v. Oxnard Harbor Dist., 46 Cal.App.2d 477, 491, 116 P.2d 121; King v. Schumacher, 32 Cal.App.2d 172, 179, 89 P.2d 466; Mitchell v. Towne, 31 Cal.App.2d 259, 87 P.2d 908; Hume v. Fresno Irr. Dist., 21 Cal.App.2d 348, 356, 69 P.2d 483. The errors complained of by the appellant all go to the first count except as to the sufficiency of the evidence to sustain a judgment on the second count. When insufficiency of the evidence is made the basis of an appeal, it is not the function of the appellate court to weigh the evidence. If there is substantial evidence to support a verdict it will not be disturbed. McCray v. Reese, 209 Cal. 453, 288 P. 72; McKean v. Alliance Land Co., 200 Cal. 396, 253 P. 134. Evidence is ordinarily deemed sufficient to sustain a judgment when it is not inherently improbable and is of such probative force as to create a substantial conflict with that opposed to it. Noland v. Noland, 44 Cal.App.2d 780, 113 P.2d 11. The evidence produced by the plaintiff is not inherently improbable, and it is of such character as to weigh heavily against any opposed to it. In so far as the sufficiency of the evidence to sustain it goes, the second cause of action is also free from error.

The judgment is affirmed.

JONES, Justice pro tem.

NOURSE, P. J., and GOODELL, J., concur.

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