Newbert v. McCarthy

LENNON, J.

In this action the plaintiff sued to recover a judgment against the estate of her deceased sister in the sum of $750 as compensation for personal services alleged to have been rendered by the plaintiff to the deceased during her lifetime. The defendants, the executors of the estate of the deceased sister, had judgment in the court below. In support of plaintiff’s appeal from that judgment it is contended that inasmuch as the rendition of the services in suit was an admitted fact in the case the judgment should have gone for the plaintiff because of the general rule that a person receiving the services of another is presumptively bound to pay the reasonable value of the same. Ordinarily this is the rule.

(Moulin

v.

Columbet,

22 Cal. 509;

Crane

v. Derrick, 157 Cal. 667 [109 Pac. 31];

Estate of Rohrer,

160 Cal. 574 [Ann. Cas. 1913A, 479, 117 Pac. 672].) This presumption, applicable as it may be to transactions between persons unrelated to one another, is not pertinent to nor can it prevail over the facts of the instant ease.

In the instant case the plaintiff and decedent were sisters and all of the services in suit were rendered by the

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plaintiff while the decedent was visiting her at her home .in San Francisco. In such a situation the natural inference is not that the services were rendered in expectation of remuneration, but, on the contrary, that they were spontaneous acts of courtesy and kindness prompted by the natural affection of one sister for another. This being so, the presumption ordinarily prevailing that the services were to be paid for cannot be invoked and implied in favor of the plaintiff’s case.

The question in all eases of this character is one of intention. If at the time the services were originally rendered they were intended to be gratuitous, prompted by friendship, kindness, and the relation existing between the parties, and were tendered without any expectation of remuneration, they cannot later be converted into a pecuniary demand.