Bean v. Wilson

PEEK, J.

This is an appeal by defendant administratrix from an adverse judgment in an action brought by plaintiff to recover for personal services alleged to have been performed by plaintiff at the request of decedent, and for the recovery of money advanced to him by plaintiff.

The record shows that plaintiff and the wife of decedent were sisters. In December, 1927, plaintiff took up residence at the Marsh ranch and except for a short period in 1937 when she was away and a period of approximately two years during the second World War when the Marshs were away, she and the Marshs lived there continuously until after his death in 1949. Marsh survived his wife by two years. Following his death plaintiff filed a claim against his estate and upon its rejection filed the present action in which she prayed for judgment for the reasonable value of the services rendered

[60]

and money loaned to him during his lifetime. Defendant denied generally the allegations of the complaint and affirmatively alleged that the claim was barred by the statute of limitation.

Following the entry of judgment in favor of plaintiff, defendant appealed, contending (1) that there is no evidence to support the finding of the trial court of an express agreement on the part of the decedent to pay for the services as alleged; (2) that the evidence shows as a matter of law that the statute of limitation has barred plaintiff’s action, both for alleged services rendered and for the monies advanced, and (3) that there is a variance between the pleading and proof.

No benefit could be had from a protracted discussion of the numerous facets of defendant’s first contention. Text writers have written at length and the cases on the subject are legion (see 7 A.L.R.2d 12). However, in this state the rule appears to be settled. In the ease of

Winder

v.

Winder,

18 Cal.2d 123, 128 [144 P.2d 347, 144 A.L.R. 935], where the services were performed by a son for his father, as in this ease, the court, in sustaining a judgment for the son, held that “ ‘The intention to pay and the expectation of compensation may be inferred from conduct where equity and justice require compensation, as well as from direct communications between the parties . . . [The] expectation of compensation may co-exist with higher motives prompted by affection or the sense of duty and . . . the existence of the latter does not necessarily exclude the idea of pecuniary compensation . . . To warrant the finding of such contract, the elements of intention to pay on the one hand, and expectation of compensation on the other, must be found to