Rooney v. Sullivan

DOOLING, J.

This is an appeal from a judgment entered on an order sustaining without leave to amend defendant’s demurrer to plaintiff’s second amended complaint.

The second amended complaint contained three causes of action. The first was for the reasonable value of services performed and actual amount of money expended. It was alleged that during 1944 decedent requested appellant to render services and to provide food, supplies and transportation for her. Decedent promised in return for this assistance to execute a will wherein she would devise to appellant a certain lot of land and a home thereon together with certain furniture and furnishings. Appellant in reliance on this promise rendered services “until about October, 1951,” of the reasonable value of $6,000 and expended the sum of $1,606.66. Decedent executed a will devising the property promised to appellant but decedent was subsequently declared incompetent and her appointed guardian thereafter caused the property so devised to be sold.

Appellant’s second and third causes of action sought recovery in common counts for reasonable value of services and for money expended.

Respondent generally demurred and specifically raised the statute of frauds (Code Civ. Proc., § 1973, subd. 6; Civ. Code, § 1624, subd. 6) and the statute of limitations (Code Civ. Proc., § 339).

Although appellant suggests that the pleading does not state that the agreement was an oral one, it does not seem that this point is being seriously emphasized, since the appeal is based on the rule of implied in law agreement to pay reasonable value of services when an express oral agreement to com

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pensate by will is not fulfilled. In any event this could readily be cured by amendment and under present well-settled rules the sustaining of a demurrer on that ground without leave to amend would be error.

An action upon a contract not evidenced by an instrument in writing must be commenced within two years after the action accrues. (Code Civ. Proc., § 339, subd. 1.)

Where services are rendered under an oral agreement to compensate the person rendering them by the will of the promisor and the oral promise to compensate by will is not carried out the law implies an obligation to pay the reasonable value thereof.