ROTEA v. IZUEL (1939)

This appeal is from a judgment in favor of plaintiff on a claim against the estate of Antonio Izuel, rejected by his executor, for the reasonable value of personal services rendered to Eugenio Izuel, the invalid sister of decedent, from June 12, 1916, up to the time of the latter's death on October 16, 1932. Trial resulted in a judgment for plaintiff upon his first cause of action in the sum of $9,000, from which judgment defendant executor prosecutes this appeal.

The complaint alleged that the services in question were performed at the special instance and request of decedent, and consisted of maintaining a home for decedent's invalid sister, nursing her and administering to her comfort; that all of said services were rendered by plaintiff “with the expectation on the part of said plaintiff, that he would be paid and that he would receive, and with the expectation and intention on the part of said Antonio Izuel, that the said plaintiff should be paid and that he should receive, reasonable compensation therefor out of the estate of said Antonio Izuel, after his death. * That all of said services were rendered by said plaintiff to said Antonio Izuel, continuously during all of said time, pursuant to the instance and request of said Antonio Izuel, as aforesaid, and pursuant to the mutual expectations of the said plaintiff and said Antonio Izuel and with the knowledge and approval of the said Antonia Izuel, and he accepted said services, and the benefits derived therefrom.”

Upon evidence, the sufficiency of which is admitted, the trial court found that the foregoing allegations were true, and it is now conceded that the judgment must be upheld unless as a matter of law it can be said that the admittedly proven facts do not entitle plaintiff to recover.

The position of appellant is, first, that an action in assumpsit cannot be maintained upon the theory of an implied contract for services rendered, not to the party to be charged but to a third person—in this instance the sister of the party to be charged. This raises the question as to whether under the evidence the transaction between plaintiff and the decedent created an original or primary obligation on the part of the latter. Under the facts of the instant case, we are impressed with the fact that the services in question were rendered by plaintiff upon the reliance that decedent would pay for them out of the proceeds of his estate, and further, that the latter unequivocally and directly promised to make such payment. It was held in Klamath Lbr. Co. v. Co-operative Land & Trust Co., 25 Cal.App. 678, 145 P. 159, that this constitutes an original contract with a sufficient consideration to support it. Also, in the case before us, the evidence conclusively shows that at the time plaintiff commenced to render services for the invalid sister of decedent no debt had then accrued, and Antonio Izuel promised to pay out of his estate after his death for said services to be rendered. His promise, therefore, was to pay his own obligation based upon an agreement made in advance of the accrual of that obligation. That it is not necessary in order to constitute a good consideration that a benefit should be conferred upon the promisor, but that a prejudice suffered or to be suffered by the promisee affords sufficient consideration, is firmly established in our law. Civ.Code, sec. 1605. The services rendered by plaintiff in caring for the invalid sister of the promisor certainly amounted to a detriment or prejudice within contemplation of the law.

Appellant finally contends that the alleged oral contract to compensate the respondent upon the death of the decedent promisor out of the proceeds of the latter's estate, was unenforceable by reason of the provisions of subdivision 6, section 1973, of the Code of Civil Procedure. That this is the law is well settled. Long v. Rumsey, Cal.Sup., 84 P.2d 146. A recovery, if any, therefore, must be based upon the theory of quantum meruit. It is earnestly urged by appellant that the action here in question based upon quantum meruit is barred by the statute of limitations, subdivision 1 of section 339 of the Code of Civil Procedure, it being conceded that the last services under the alleged contract were performed more than two years before the death of Antonio Izuel. Respondent's position is that the services were rendered under an agreement that compensation for the same was to be made out of the estate of Antonio Izuel; that when the latter failed to make provision for payment out of his estate the contract was breached, and that upon such breach the law implied a promise to pay the reasonable value of the services rendered pursuant to the agreement; and that the cause of action then arose and the statute of limitations then began to run. In Long v. Rumsey, supra, it is stated that notwithstanding the unenforceability of a contract of this nature, nevertheless in California recovery has been permitted from the estate in an action upon quantum meruit for services rendered to a decedent. See, also, cases cited at page 149 of this decision.

While it is true that in the cases cited by the Supreme Court in Long v. Rumsey, supra, the services terminated contemporaneously with the death of the employer, we are of the opinion that even though the services terminated prior to the death of the employer, recovery may be had where, as in the case before us, the evidence was sufficient to clearly and definitely prove an express contract to pay for certain services at a future time. The evidence in the case at bar satisfies the test announced in Spinney v. Downing, 108 Cal. 666, 41 P. 797, 798, as follows: “It is essential to the existence of every contract that there should be a reciprocal assent to a definite proposition.” There is ample evidence in the record here to support the conclusion that it was the understanding of both parties to the contract that the compensation to be paid respondent, as we have already indicated, would only become due and payable upon the death of Antonio Izuel. In fact, appellant makes no argument to the contrary. The court having found upon clear, convincing and substantial evidence that the promise in question was to pay a debt at the death of the promisor, and such an agreement being a valid and legally binding obligation, it follows that the statute of limitations did not commence to run until the death of the promisor, and the action having been filed within two years thereafter, it was not barred by the statute.

For the foregoing reasons, that portion of the judgment from which this appeal was taken is affirmed.

WHITE, Justice.

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