Gold v. Killeen

Citation33 P.2d 595,44 Ariz. 29
Decision Date19 June 1934
Docket NumberCivil 3295
PartiesM. M. GOLD, Appellant, v. HELEN GOLD KILLEEN and ROSE GOLD, Executrices of the Estate of MARTIN GOLD, Deceased, Appellees
CourtSupreme Court of Arizona

APPEAL from a judgment of the Superior Court of the County of Maricopa, Joseph S. Jenckes, Judge. Judgment reversed and cause remanded.

Messrs Cox & Moore, for Appellant.

Mr Thomas W. Nealon, for Appellees.

OPINION

McALISTER, J.

This is an action by A. M. Gold against the executrices of the estate of Martin Gold to recover for services rendered the latter during his lifetime. A general demurrer to the complaint was sustained without leave to amend and judgment for the defendants followed. From it the plaintiff has appealed.

The correctness of the ruling sustaining the demurrer can be determined only by examining the allegations of the complaint. It appears from them that in November, 1894, the plaintiff, A. M. Gold, at the request of Martin Gold deceased, left his home in Povlje, Austria, and arrived in Phoenix, Arizona, in January following, to live with and work for Martin Gold, and that at the request of the latter he then began living with and working for him and continued to do so without interruption until December, 1904; "that at the time he began work for the said Martin Gold and on numerous occasions thereafter, while he was in his employ he, the said Martin Gold, agreed with the plaintiff, A. M. Gold, that if he would live with and work for the said Martin Gold until the death of said Martin Gold that he, the said Martin Gold, would pay him well for such work and services by furnishing the plaintiff with the necessaries of life, including room, board and clothing, and in addition thereto would at the time of his death pay him in money sufficient to well compensate him for his work and services performed by the plaintiff for the said Martin Gold"; that relying on this promise the plaintiff worked for Martin Gold from January 1, 1895, until December, 1904, during which time the said Martin Gold treated the plaintiff with great cruelty and caused him to work at all hours of the day and night; that on or about December, 1904, the said Martin Gold became so abusive and treated the plaintiff so cruelly that he was compelled to leave his employ to protect his life.

It is further alleged that on various occasions thereafter the said Martin Gold came after the plaintiff and tried to get him to go back and work for him and that the plaintiff did return and try it on numerous occasions during the years 1905, 1906 and 1907, for approximately ten months altogether, for which the said Martin Gold promised the plaintiff to pay him at his (Martin Gold's) death, as had been previously agreed; that in 1905, when the plaintiff returned and worked for him for several months, Martin Gold again became so abusive that the plaintiff was compelled to leave his employ, an occurrence that was repeated in 1906; that after the year 1907 and until the death of Martin Gold in July, 1931, plaintiff was unable to work for him because he treated plaintiff so cruelly and inhumanly, though he stood ready and willing during all this period to continue to live with and work for him and thus fulfill the agreement, had he been permitted to do so.

It is averred further that on July 24, 1931, the said Martin Gold died; that the services rendered by the plaintiff to said Martin Gold under the contract from January 1, 1895, to December, 1907, were reasonably worth, in addition to room, board and the necessities of life, the sum of $20,000; that upon the death of said Martin Gold there became due and owing from his estate to the plaintiff the sum of $20,000, no part of which has been paid; that on March 24, 1932, the plaintiff made out, in the form required by statute, his claim against the estate of Martin Gold, deceased, and presented it to the executrices of the last will and testament of Martin Gold as directed in their Notice to Creditors, but the claim was rejected by the said executrices.

The only assignments are that the court erred, first, in sustaining the demurrer to the complaint and, second, in rendering judgment for the defendants. The one question presented, therefore, is whether the facts alleged, which must be taken as true for the purposes of the demurrer, state a cause of action.

The gist of the complaint is that in November, 1894, the plaintiff was employed by Martin Gold, deceased, to live with and work for him until his death upon the promise that he would, in addition to furnishing plaintiff food, clothing and a home, pay him at that time sufficient money to compensate him well for his services. The plaintiff complied with this contract for nine years continuously, or from January, 1895, to December, 1904, but at the end of that period he was compelled to leave the employment because the deceased became so abusive to him. However, at the solicitation of the deceased, plaintiff returned several times afterwards to fulfill the terms of the agreement but after a few months' service on each occasion was driven away by the deceased, though, notwithstanding this, he stood ready and willing at all times until the death of Martin Gold in 1931 to live with and work for him, and would have done so had not the latter prevented him from it.

It is contended by appellee that unless there was a valid agreement providing therefor no recovery can be had under these facts for the reason that the plaintiff was an infant and the deceased during this period stood in the relation to him of loco parentis. If A.M. Gold went to the home of Martin Goldand lived merely as a member of the family with the understanding that he was to receive his food, clothing and other necessities but without an agreement that he was to be paid anything in addition for his services there would be no ground for appellant's claim, because in that event the presumption would be that his services were rendered gratuitously, or at least as a consideration for food, clothing, a place to live and other necessities. The rule, which practically all the courts adhere to, is stated in the syllabus in Succession of Daste, 125 La. 657, 51 So. 677, 29 L.R.A. (N.S.) 297, as follows:

"There is a presumption that the kindly services rendered by a foster daughter to her foster father during his last illness are gratuitous, and the law will not allow recovery for such services in the absence of an express promise to pay for them, or the presence of such circumstances as will be equivalent to such a promise."

To the same effect see Hodge v. Hodge, 47 Wash. 196, 91 P. 764, 11 L.R.A. (N.S.) 873; Wood on Master and Servant, § 72.

However, this principle has no application here since the complaint specifically alleges that at the time plaintiff began living with and working for Martin Gold and on numerous occasions thereafter the latter agreed with him "that if he would live with and work for the said Martin Gold until the death of said Martin Gold, that he, the said Martin Gold, would pay him well for such work and services by furnishing the plaintiff with the necessaries of life, including room, board and clothing, and in addition thereto would at the time of his death pay him in money sufficient to well compensate him for his work and services performed by the plaintiff for said Martin Gold." An agreement by Martin Gold to compensate plaintiff in money for his services at the time of his (Martin Gold's) death, provided plaintiff lived with and worked for the latter until the happening of the event, could not have been more definitely alleged.

It is contended, however, that even though the contract was entered into and services performed under it, no recovery can be had therefor, because the plaintiff was discharged in 1907 and any cause of action that may have arisen in his favor as a result of this act on the part of Martin Gold was barred in 1910 by section 2060, Revised Code of 1928, providing that such an action shall be commenced and prosecuted within three years from the date of its accrual, and not afterwards. This bar, appellee contends, is effective whether the action be viewed as resting on a quantum meruit or upon a breach of contract, since, in the event of the former, it accrued upon the rendition of the last service, or, in case of the latter, at the time of the breach. In either event, it is argued, the action had been barred for many years. It is...

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13 cases
  • Annon v. Lucas
    • United States
    • West Virginia Supreme Court
    • December 6, 1971
    ...promptly made claim against his estate and began and prosecuted an action upon the agreement with all due diligence. Gold v. Killeen, 44 Ariz. 29, 33 P.2d 595, 94 A.L.R. 448. Here it is clear that as the plaintiff elected, which he had a right to do, to keep the agreement alive and to perfo......
  • Binning v. Miller
    • United States
    • Wyoming Supreme Court
    • April 29, 1940
    ... ... Franklin, 27 A. L. R. 590; Hoge v. George, ... Admr., 27 Wyo. 423; 95 A. L. R. 1242; Stewart v ... McKeon, 36 Wyo. 106; Gold v. Killeen, 33 P.2d ... 595; Haynes v. Chastion, 68 Ind. 376; Osborne v ... Kimball, 21 P. 163; Bank v. Ford, supra.; Hildebrand v ... C ... ...
  • Waugh v. Lennard
    • United States
    • Arizona Supreme Court
    • November 21, 1949
    ... ... [211 P.2d 814] ... statute of frauds. Steward v. Sirrine, 34 Ariz. 49, ... 267 P. 598; Gold v. Killeen, 44 Ariz. 29, 33 P.2d ... 595, 94 A.L.R. 448; Condon v. Arizona Housing Corp., ... 63 Ariz. 125, 160 P.2d 342. As to subsection 8, ... ...
  • Lane v. Nationwide Mut. Ins. Co., 83
    • United States
    • Maryland Court of Appeals
    • September 1, 1988
    ...to run against him immediately." See, e.g., Hall v. Allstate Ins. Co., 880 F.2d 394, 399 (11th Cir.1989); Gold v. Killeen, 44 Ariz. 29, 34-35, 33 P.2d 595, 597, 94 A.L.R. 448 (1934); Napa Ass'n, Etc. v. County of Napa, 98 Cal.App.3d 263, 270 n. 5, 159 Cal.Rptr. 522, 526 n. 5 (1979); Annon v......
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