O'BRIEN v. Fitzsimmons

GOOD, J. pro tem.

*

In an action upon a creditor’s claim filed by James H. McCarthy, since deceased, against defendant estate, a judgment for $7,789.75 was recovered as the reasonable value of services rendered and expenditures made by plaintiff for the benefit of the deceased during his lifetime. The complaint alleged that in December, 1948, Henry Gagliardo and plaintiff entered into an oral contract wherein it was agreed that if plaintiff would move into Gagliardo’s home, act as his companion and look after his general welfare during the remainder of his life, he would make a will to reasonably compensate plaintiff and leave him well provided for; that decedent died in 1957 and his will was admitted to probate in San Francisco; that within the statutory period, plaintiff presented the executrix with a creditor’s claim for services rendered and money advanced pursuant to said agreement and that the claim was rejected. Findings of fact were made in accordance with the basic allegations and fixed the amount aforesaid as the reasonable value of services in moving into decedent’s home and acting as his companion and of moneys advanced for decedent's benefit. Before entry of judgment, plaintiff died and his executrix was substituted as plaintiff.

The evidence discloses that in 1948, Gagliardo had recently lost his wife and lived alone in a fairly large house; that he wanted his brother-in-law, McCarthy, to live with him because people were badgering him to sell the house and make other arrangements. The deceased also tried to persuade the plaintiff executrix to take up residence with them and at the time stated that McCarthy just had to stay with him; that that was the way his predeceased wife wanted it; that the house would go to the brother; and that all the latter would have to do would be to pay utility bills and taxes. There was testimony of a similar conversation prior to Mrs. Gagliardo’s death. McCarthy continued his residence with the decedent until the latter’s death. Receipts were produced for various utilities and taxes totaling $2,993.75 and the operator of an employ

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ment agency was permitted to testify that the reasonable value of a companion in residence was $50 to $75 per month during the time involved.

' Appellant contends that the complaint did not state facts sufficient to constitute a cause of action; that if the action was upon an oral contract, it would be void because of the statute of frauds; that if it was in quantum meruit it would be barred (at least as to a major portion) by the statute of limitations; that the evidence was insufficient to prove the alleged oral agreement or that any services were rendered by plaintiff to decedent; and, that because both plaintiff and his sister lived at decedent’s home without payment of rent they should not be entitled to recover for utilities and taxes advanced by plaintiff.