Toney v. Security First Nat. Bank of Los Angeles
| Decision Date | 11 December 1951 |
| Citation | 238 P.2d 645,108 Cal.App.2d 161 |
| Court | California Court of Appeals Court of Appeals |
| Parties | TONEY v. SECURITY FIRST NAT. BANK OF LOS ANGELES et al. Civ. 18478. |
Eugene V. McPherson, Los Angeles, for appellant.
Church, Church & Howard, Charles F. Howard, Los Angeles, for respondents.
Appeal by plaintiff from a judgment of dismissal entered pursuant to an order sustaining defendants' demurrer to plaintiff's third amended complaint (called the complaint) without leave to amend. The action is on a creditor's claim.
The complaint alleges that plaintiff duly presented a claim for $13,400 to defendants, as administrators of the estate of Charles Taylor, which was rejected. The claim, in pertinent part, reads:
"Medical, nursing and housekeeping care provided for Charles Stuart
Taylor during years 1940, 1941 and 1942 under agreement by said
Charles Stuart Taylor to pay for saic care prior to death ......... $5,400.00
Agreement by Charles Stuart Taylor to put children of Roberta K
Toney and John Toney through college when they were ready to go
said agreement made during the years 1941 and 1942 ............... $8,000.00"
The complaint also alleged that: about May 1, 1940, while plaintiff was gainfully employed, decedent Taylor promised her that if she would take care of the crippled minor son of decedent and render to him (the son) the nursing care required during his then illness, and continue such nursing and care until such time as the son recovered, he (Taylor) would make a will leaving plaintiff a sufficient sum to compensate her for her work and labor, and that decedent also promised plaintiff he would make a will leaving to plaintiff, for the education of her two minor children, sufficient sums to educate them through college; plaintiff quit her employment and rendered the services as required during 1940-1941 and parts of 1942 until the son no longer required nursing and care; about July 15, 1942, decedent told plaintiff he had made a will, under the terms of which she would receive $13,400 for the services; the reasonable value of the services is $13,400.
It was also alleged that: about July 15, 1942, decedent falsely and fraudulently represented to plaintiff that he had prepared a will leaving her $13,400; decedent knew the representation was untrue; plaintiff relied on it; she had no method of knowing or discovering that it was false; she continued to rely on the representation; on the death of Taylor August 27, 1949, she discovered for the first time that he had not made a will but had died intestate.
Respondents first assert that the cause of action alleged varies materially from that set forth in the claim. They say that the claim is based on an express agreement and that the complaint is based upon an implied- in-law agreement. The claim and the cause of action alleged in the complaint are based on the assertion that decedent when he died was indebted to plaintiff in the sum of $13,400.
As said in Tabata v. Murane, 24 Cal.2d 221, 229, 148 P.2d 605, 610, 'The claim and each of the three causes of action alleged in the complaint are based upon the assertion that decedent when he died was indebted to plaintiff in the sum of $21,115.62, and the claim reasonably apprised defendant of the fact that plaintiff claimed that the decedent, at the time of his death, held money in trust for, or was indebted to, plaintiff in the sum of $21,115.62. If defendant wished further details to enable him better to determine the justice or accuracy of the claim or what, if any, portion thereof was barred by the statute of limitations, it was for him to demand a more complete statement and proof. The statute contemplates such procedure. (See Prob. Code, § 705; Syler v. Katzer (1938), 12 Cal.2d 348, 350, 84 P.2d 137, 119 A.L.R. 422; Reeves v. Vallow (1940), 16 Cal.2d 95, 98, 104 P.2d 1017.) In Davis v. Mitchell (1930), 108 Cal.App. 43, 50, 290 P. 887, it was held that there was See, also, Reeves v. Vallow, 16 Cal.2d 95, 104 P.2d 1017, and particularly the concurring opinion of Mr. Justice Edmonds in which the claim and the complaint are stated, and Leoni v. Delaney, 83 Cal.App.2d 303, 309, 188 P.2d 765, 189 P.2d 517.
Etchas v. Orena, 127 Cal. 588, 60 P. 45, which held that inasmuch as the claim made no reference to the decedent's promise to make payments for the services in her will, the plaintiff could not rely on such promise, and like cases were expressly overruled in the Tabata case. We are of the opinion that the cause of action alleged in the complaint is not so widely divergent from the claim that it can be said the complaint does not state a cause of action for that reason.
The cause of action alleged is not barred by the statute of limitations as asserted by respondents. An action upon a contract, obligation, or liability, not evidenced by an instrument in writing, is barred two years after the cause of action accrues. Code Civ.Proc. § 339, subd. 1. Where an oral agreement to leave property by will is in compensation for services rendered, or to be rendered, and hence unenforcible under the statute of frauds, the remedy is in quantum meruit for the value of the services rendered. See cases cited 23 West's Cal.Dig., Frauds, Statute of, 628, k138(4). When an express oral agreement to compensate for services by will is not fulfilled, the law implies a promise to pay their reasonable value. Manford v. Coats, 6 Cal.App.2d 743, 748, 45 P.2d 395. The recovery is not on the oral agreement but on the agreement which the law implies upon the failure to perform the oral agreement. The agreement implied by law does not arise...
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