Burgess v. Helm

• Decision Date: 08 February 1898
• Docket Number: 1,516.
• Citation: 51 P. 1025,24 Nev. 242
• Parties: BURGESS v. HELM.
• Court: Nevada Supreme Court

51 P. 1025

24 Nev. 242

BURGESS v. HELM.

No. 1,516.

Supreme Court of Nevada

February 8, 1898

Appeal from district court, Ormsby county; C. E. Mack, Judge.

Action by William Burgess against Frank Helm, administrator of the estate of Mrs. William McDonald, deceased, to recover value of services. From a judgment for plaintiff, and from an order denying a motion for new trial, defendant appeals. Affirmed.

A. J McGowan and J. Emmett Walsh, for appellant.

Alfred Chartz, for respondent.

BONNIFIELD J.

The plaintiff duly filed with the clerk of the district court of the First judicial district of the state of Nevada, in and for Ormsby county, his claim against the estate of said deceased, to wit: "Estate of Mrs. William McDonald deceased, to William Burgess, Dr., for wages from February 15, 1890, to April 13, 1897, as a laborer working for deceased upon and about her home, at the rate of $12.00 per month, $1,044. Credit by cash, paid on account of wages during said period, and for clothes purchased by deceased and furnished claimant, $245.00. [Balance] $799.00." The administrator rejected the claim; hence this suit. The jury found for the plaintiff in the sum of $500. Judgment was given accordingly, with costs. The defendant appeals from the judgment, and from an order of the court denying his motion for new trial.

It is alleged by the complaint, substantially, that the plaintiff worked, as a laborer, on the farm and in and about the premises of Mrs. William McDonald, deceased, at her request from February, 1890, to April, 1897; that the plaintiff filed his claim, on which this action is brought, against said estate, for his said services, with the clerk of said court; that the same was presented by the clerk to the defendant, as such administrator, for allowance, and by the defendant rejected; "that a copy of said claim as presented is hereto attached, and made a part of this complaint"; that said services are reasonably worth the sum of $12 per month; that no part of the same has been paid except the sum of $245; and that there remains due and unpaid thereon to the plaintiff the sum of $799. The defendant demurred to the complaint, on the grounds that the court had no jurisdiction of the subject-matter, and that the complaint does not state facts sufficient to constitute a cause of action. The court overruled the demurrer, to which exception was taken, and the ruling of the court is assigned as error. The particular grounds specified, argued, and urged by counsel in support of the demurrer are "that the action herein sought to be maintained is one upon a quantum meruit, while the claim filed and presented to the defendant, as such administrator, for allowance or rejection, was founded upon an express contract; that the complaint filed in said action is not founded or based upon the claim which is alleged to have been presented to defendant; *** that the claim upon which the cause of action set out in the complaint is based was never filed or presented to the defendant." The complaint shows that the action was brought on the said claim, which was presented to and rejected by the defendant. If that claim is based upon an express contract between the plaintiff and Mrs. McDonald, deceased, and to recover an agreed price for said services, then this action is founded on that character of claim, and not upon an implied contract for the payment of what said services were reasonably worth. If the defendant regarded the complaint as being uncertain or ambiguous in the above respect, and that it was material for him to be informed, for the purposes of his defense, as to the character of the contract on which the plaintiff based his claim against the estate, he should have demurred on the "seventh" statutory ground of demurrer.

If the claim on which this action was brought be regarded as a claim based on an express agreement, and for an agreed rate of compensation for the services performed, a recovery by the plaintiff upon proper proof of the services and of their value must be sustained. At most, it...