DeMartini v. Katz

DOOLING, J. pro tem.

This is an appeal from a Judgment in favor of plaintiff for $3150. The trial court found that plaintiff rendered services to decedent Raffetto from September 1, 1910 to June 1, 1914 and from June 24, 1919 to October 20, 1937 for and in consideration of and with the agreement, promise and understanding that for the continuous and indefinite period of such services the decedent as compensation would leave by will to plaintiff an adequate and reasonable amount, that decedent died intestate on October

[69]

20, 1937, and that the reasonable value of all such services was $3150.

Appellant states the questions presented on this appeal as follows:

“1. The court found that the decedent expressly promised to compensate plaintiff by testamentary bequest and if the evidence is insufficient to support such finding, can such judgment be sustained on the theory of an implied agreement ?

“2.

Is plaintiff’s alleged cause of action partly barred by the provisions of subdivision 1 of Section 339 of the Code of Civil Procedure . . . where a part of the services upon which the judgment is based, terminated 23 years before the death of decedent?

“3. Where a substantial part of the alleged services is barred, do the findings based thereon support a judgment for a lump sum, where there is nothing by which the court can apportion the amount of the judgment between what is barred and what is not barred ? ’ ’

In connection with point 1 the appellant argues that the complaint failed to state a cause of action because an oral contract to leave property by will is unenforceable. However the complaint and findings both bring this case clearly within the rule of

Burr

v.

Floyd,

137 Cal. App. 692 [31 Pac. (2d) 402], and the cases cited on page 696 of the opinion in that case, that when an express oral contract to compensate for services by will is not fulfilled the law implies a promise to pay their reasonable value. The court found the oral promise to compensate by will, the failure to perform it, and the reasonable value of the services. It thus found all the elements set out in those cases as justifying a recovery. The recovery is not on the oral contract, but on the contract which the law implies upon the failure to perform the oral contract.