Friel v. Rawlings

California Court of Appeal Mar 19, 1928 No. Docket No. 6143.Published

Before: Burroughs

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Holding. A plaintiff cannot maintain an action against an estate on a cause of action that differs from the claim originally presented to and rejected by the executor. Because the plaintiff's claim was for services rendered and the complaint alleged an open book account to avoid the statute of limitations, the variance was fatal.

Issues

Whether a plaintiff may recover against an estate on a cause of action different from the claim presented to the executor.
Whether a material variance exists when a claim is presented as a demand for services but the complaint alleges an open book account.

Disposition. affirmed

Quotations verified verbatim against the opinion

“In such action he can recover only upon the claim which has been so presented and rejected, and is not entitled in that action to recover against the executors for any other cause of action.”

BURROUGHS, P. J.,

pro

tem.

The trial court granted a motion for a nonsuit and this is an appeal from the judgment entered thereon.

Plaintiff presented her claim to the executor of the estate of Lucinda E'. Duffy Rawlings, deceased, which claim was in form as follows:

“Estate of Lucinda E. Duffy Rawlings, Deceased.

To Cecelia A. Friel, Dr.

To services rendered by Cecelia A. Friel to Lucinda E. Duffy Rawlings, at the special instance and request of said Lucinda E. Duffy Rawlings, as per itemized bill and voucher hereto attached, marked Exhibit ‘A’ and made a part hereof.

Total .........................................$3527.93.

Voucher.

Exhibit ‘A’

Los Angeles, Cal., April 1st, 1924. Estate of Lucinda E. Duffy Rawlings

To Cecelia A. Friel Dr.

To services rendered at the special instance and request of Lucinda E. Duffy Rawlings, as follows:

Fumigating and housecleaning, Apr. 20 to Apr. 24,

inclusive, 1919, @ $3.50 day...............$ 17.50

Nursing, housework, general care deceased’s property April 25 to Sept. 3, inclusive, 1919, @

$125. per mo. Entire time at premises No.

4419 E. 1st, Los Angeles................... 533.28

Nursing, Sept. 4, 1919 to Feb. 1, 1920, inclusive,

@ $125. per month. Entire time at premises

No. 4419 E. 1st, Lo.s Angeles.............. 616.65

Grading yard, helping to construct house, wiring remodeling on rear house 4419% E. 1st

[222]

Friel v. Rawlings

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BURROUGHS, P. J.,

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