McCann v. Pennie
Before: Haynes
Synopsis
Pleading—General Demurrer.—Upon a general demurrer to a complaint, an objection going only to a part of the cause of action cannot be sustained.
Estates of Deceased Persons—Action Upon Contract With Decedent— Performance in Foreign Country.—The fact that services to be performed under a contract made with a deceased person in his lifetime, were to be performed, or were performed in a foreign country, does not affect the right of the person rendering the services to maintain an action thereon in the courts of this state.
Id.—Liability of Personal Representative of Decedent.—Where the contract of the deceased is of an executory nature, and his personal representative can fairly and sufficiently execute all the deceased could have done, he may do so and enforce the contract, and is bound to complete the contract, and if he does not, may be made to pay damages out of the estate.
Id.—Presentation of Claim—Pleading—Demurrer.—A complaint upon a claim against the estate of a decedent is not demurrable for not alleging that the plaintiff presented his claim to the administrator within the time limited in the notice to creditors, if it does not show upon its face that it was not so presented, or that it was presented at a date after the time limited in the notice.
Id.—Presentation of Claim Before Notice.—A claim may be presented before the notice to creditors is published, and such presentation is good.
Id__Statute of Frauds—Pleading—Presumption.'—Where a contract is required to be in writing it is not necessary to allege in a pleading that it was in writing. If necessary to its validity, it will be presumed that it was in writing, and the bar of the statute must be pleaded in defense, unless the complaint shows upon its face that the contract is void under the statute.
Haynes, C. Judgment was entered against the plaintiff upon demurrer to his complaint, and this appeal is from that judgment.
In May, 1882, Blythe claimed to be the owner and was in possession of a tract of land in Mexico containing about one million eight hundred thousand acres, and at that date entered into a contract with the plaintiff by which the plaintiff and his family should go from San Francisco to Mexico, and live upon the land, and conduct and manage the business of breeding, raising and [550]selling hogs, cattle, horses and mules thereon from that time until December 31, 1887; and as compensation for plaintiff’s services he was to receive fifty dollars per month, fifty acres of said laud to be conveyed to him at the expiration of the contract, a certain number of cows, with their increase, and a percentage of the profits resulting from the business; Blythe to furnish a designated number of hogs, cows, brood mares, etc., and to make the improvements necessary for conducting the business.
Plaintiff entered upon the performance of the contract and continued upon the land in charge of the business until August, 1887. Blythe resided' in the city of San Francisco, and died in said city April 4,1883, leaving a large estate in said city and county. On June 12, 1883, Philip A. Roach was appointed administrator of his estate by the superior court of said city and county, and qualified the same day.
After stating the terms of the contract very fully, and assigning several breaches of the same, and alleging the damages sustained therefrom, and other matters not necessary to be stated here, the complaint further alleged that the next day after the appointment and qualification of Roach as administrator, he informed him of his said contract and the particulars of it, "and requested immediate and full performance of it on the part of the administrator; that the administrator recognized the validity of the contract, and from that time acted under and partially performed the same, that the court and judge in which the administration proceedings were conducted also recognized the validity and obligation of the contract as against the estate, and at various times from that date until August, 1887, ordered and • appropriated sums of money out of said estate, aggregating over twenty thousand dollars, for the purpose of carrying out said contract on the part of the estate, which sums were expended by the administrator for that purpose; that said cause of action did not fully accrue until January 1, 1888, and that on the 19th of February, 1888, he presented to the administrator his
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