Hill v. Security First National Bank

California Court of Appeal Jun 1, 1939 No. Civ. No. 2303Published

Before: Barnard

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Holding. The court held that the plaintiff failed to prove an account stated because the writing relied upon did not establish a definite debt or an agreement by the deceased to pay, and further held that the trial court's finding that the services were not performed at the deceased's request was supported by the evidence.

Issues

Whether the evidence established an account stated between the plaintiff and the deceased.
Whether the writing was sufficient to toll the statute of limitations for a quantum meruit claim.
Whether the trial court's finding that the services were performed at the plaintiff's own insistence rather than the deceased's request was supported by the evidence.

Disposition. affirmed

Quotations verified verbatim against the opinion

“In order to constitute an account stated it must appear that at the time of the accounting a claim or claims existed, that a balance was then struck and agreed upon and that the defendant admitted that a certain and definite sum was due”

“The writing which is mainly relied upon as proving an account stated falls short of establishing the necessary facts.”

“The writing in question contains no reference to an existing debt owing to the creditor which the debtor was willing to pay.”

BARNARD, P. J. James M. Dance died testate on January 4, 1937, leaving his property to six nephews and nieces, share and share alike. Five of these beneficiaries lived in Missouri. Plaintiff presented a claim to the executor of this estate which was rejected and this action followed.

The complaint sets forth two causes of action. The first is on quantum meruit for services rendered to the deceased at his special instance and request, the reasonable value of which is alleged to be $1875 plus 15 per cent of 5/6ths of the estate left by him. The second count alleges that an account was stated between the plaintiff and deceased whereby a balance was found and it was agreed that there was due from the deceased to the plaintiff the sum of $1875 plus 15 per cent of 5/6ths of the estate left by him. The court made findings and entered a judgment in favor of the defendant and the plaintiff has appealed.

The appellant’s entire claim is based upon services which he claims to have performed at the request of the deceased in locating the nephews and nieces of the deceased, their addresses and even their existence being theretofore unknown to the deceased. It clearly appears that such services, if any, were rendered more than two years before the death of Mr. Dance, and no attempt was made to prove that any of such services were rendered within that time. The appellant introduced some evidence to the effect that he had spent some time and effort in locating these relatives and mainly relies, in so far as the evidence is concerned, on a letter or writing which he testified was handed to him by the deceased. This is addressed to four of the five relatives who lived in Missouri and reads as follows:

[166]“Guy M. Ancell, Johlal B. Ancell, May Ancell Slater and Daisy Ancell Kerr, Slater, Mo.

“Dear Nephews and Nieces:—

“This is to certify that I, James M. Dance has known and dealt with Mr. W. L. Hill, for over 19 years and that Mr. Hill is directly responsible for locating each of you and causing me to meet and know you. For several years Mr. Hill has insisted on me allowing him to locate you for the purpose of you sharing in my Estate. After locating you he insisted on my making a trip to Slater, Mo., in order to satisfy myself that all of you are the children of my sister Georgia. This is the first time I ever went back there. I left home when I was eleven years of age on account of being mistreated by my father and I resolved never to turn back to my kin-folks. When I left home which was 76 years ago, I was so young that I hardly knew my mother and never knew anything about her folks or you children until Mr. Hill brought us together. I must say that you are deeply indebted to him. I have up to this date only seen most of you once and two of you twice in all my life. I want each of you to know that when I gave you the Twelve Thousand Five Hundred ($12,-500.00) Dollars in cash and U. S. Government Bonds in 1934 was intended to be your full share and part of my Estate and the balance was to go to Tommy Pettett and Mrs. Lansing and her children.

Hill v. Security First National Bank

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