Mikesell v. Gomez

BARNARD, P. J. This is an action to recover for services alleged to have been performed for the deceased, a claim therefor having been rejected by the administratrix of his estate.

It appears, without question, that the plaintiff kept house for the deceased from July, 1929, until he died on December 28, 1943. The complaint alleged that on July 1, 1929, these parties entered into an oral agreement whereby the plaintiff [509]agreed to act as housekeeper for the decedent and he agreed to transfer or cause to be transferred to her upon his death his home, which is described, together with his household furniture and belongings in addition to furnishing her certain board, lodging and incidentals. A second cause of action alleges the performance of housekeeping services continuously from July, 1929 to December, 1943, and that these services were reasonably worth $50 a month, or a total of $8,700. The defendant filed an answer denying the material allegations of the complaint and pleading the statute of frauds in that the agreement alleged was not to be performed during the lifetime of the promisor. No statute of limitation was pleaded. The defendant also filed a cross-complaint alleging that the deceased, at the time of his death, was the sole owner of the house and lot described in the complaint; that prior to his death the deceased and the plaintiff had occupied these premises under an agreement whereby the deceased furnished the plaintiff with food, clothing and shelter in consideration of her services as housekeeper; that this contractual relationship and the right of the plaintiff to occupy the property had terminated upon his death; and that after demand made the plaintiff had refused to surrender possession of the premises to the defendant as administratrix of his estate. The cross-complaint prayed for a judgment awarding the defendant, as administratrix, the possession of said premises.

The court found in favor of the plaintiff finding, among other things, that for fourteen years prior to December 28, 1943, the plaintiff at the request of the decedent had rendered him continuous service as a housekeeper; that all of said services were rendered with the understanding and agreement that the deceased would pay their reasonable value in excess of the reasonable value of the board, lodging and incidentals furnished; that the services were not terminated before the death of the deceased; that the reasonable value of these services is $4,720 in excess of the board, lodging and incidentals furnished; that of this amount the deceased had paid to the plaintiff the sum of $1,798.61; and that there is now due and owing to the plaintiff the sum of $2,921.39. A judgment was entered awarding that amount to the plaintiff and denying the defendant any relief on her cross-complaint. From this judgment the defendant has appealed.