Cavanaugh v. Cavanaugh

PARKER, J.,

pro tem.

This is an action on a claim against the estate of William L. Cavanaugh after rejection by the administrator.

The claim presented to the administrator was as follows: “For services rendered William L. Cavanaugh, deceased, during his life time, for which he, agreed to pay the reasonable and market value thereof, consisting of continuous day and night nursing and taking care of said decedent and other incidental work, labor and services made necessary by the illness of said decedent for a period of sixty-eight (68) weeks from June 24, 1922, to October 15, 1923, at twenty dollars ($20.00) per week, $1,360.00.” It is admitted that the claim was presented within the time required by statute, and that after rejection action was commenced within the period prescribed.

William L. Cavanaugh died on or about October 3, 1925, and appellant was appointed administrator on October 5, 1925, and thereafter as such administrator caused notice to be given to creditors in the usual way. The claim, as hereinbefore noted, was rejected; hence the present action.

In plaintiff’s complaint herein she sets forth exactly the same demand as contained in the rejected claim. However, to the complaint is added this statement: “That during the life time of said William L. Cavanaugh no part of said sum was paid, and on and after the 16th day of October the entire amount and value of said services was the sum of one thousand three hundred sixty dollars, and that upon said last mentioned date the entire amount above named, to wit, the sum of one thousand three hundred and sixty dollars became and was due, owing and unpaid from William L. Cavanaugh to plaintiff.”

Defendant administrator in his answer denied the rendition of service, and denied the fact of nonpayment, and likewise denied the value of said services claimed to have been rendered. As a separate defense defendant set up the statute of limitations, section 339, subdivision 1 of the Code of Civil Procedure, this defense going to the claim as a

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whole and specifically to that portion thereof accruing prior to October 1, 1923.

At the trial plaintiff was permitted to amend her complaint, in conformity with proof offered, to allege that decedent William L. Cavanaugh promised to pay for the services as soon as he could sell certain real estate owned by him and that said real estate was sold on January 2, 1924. The trial court found in favor of plaintiff on all of the issues tendered, and judgment followed for the full amount claimed. Defendant administrator presents this appeal.