Morse v. Steele

THE COURT.

In September, 1892, E. L. G-. Steele, the owner of a ranch in El Dorado County, entered into a written contract with plaintiff with reference to the care and proceeds of certain live-stock, which were to be and were delivered by plaintiff to Steele. By the terms of the contract plaintiff was to deliver about one hundred jacks, jennies, and mares to

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Steele upon his ranch. Steele was to receive the animals and care for them “as carefully as he did for his own stock.” They were to be bred for four years, and at the end of four years the colts were to be sold for the mutual benefit of the parties to the contract, provided that, by the consent of both parties, a portion of the colts might be sooner disposed of. It was provided that the agreement should come to an end at the expiration of four years, and that Steele should have no ownership in the original stock delivered to his custody. About two years after the execution of the contract Steele died, and the defendant and respondent herein became executrix under his will. After she had qualified as such executrix, plaintiff presented the contract in question to her as a contingent claim against the estate. The claim was rejected, and plaintiff then commenced suit in the superior court of the city and county of San Francisco. Judgment passed for the executrix upon the pleadings, it being shown on the face of the complaint that the action was prematurely brought and that the claim was not due when the complaint was filed. Upon appeal the judgment of the lower court was affirmed by this court in

Morse

v.

Steele,

132 Cal. 456, [64 Pac. 690]. The present action was brought on September 28, 1898, while the appeal in the former action was pending. The two months allowed by section 1498 of the Code of Civil Procedure after the claim became due within which to commence suit thereon had elapsed, the present action, in fact, having been brought nearly two years after the claim upon which it was founded had become due. Respondent herein is sued as executrix only, and it is asked that judgment be rendered against her “as executrix payable in due course of administration.” The defendant demurred to plaintiff’s complaint; the demurrer was sustained by the court without leave to amend, upon the ground that the complaint did not show that the claim, which was the foundation of the suit, had been presented to the executrix of Steele’s estate, which presentation is, under the provisions of section 1500 of the Code of Civil Procedure, a prerequisite to a suit thereon, if the claim be founded on contract. It is undisputed that a complaint which does not allege presentation of the claim, if presentation of a claim is necessary, fails to state a cause of action, since by section 1500 presentation of a claim is a condition pre