Morrison v. Land

This is an action against the executors and executrix of the will of William Land, deceased, and the devisees and legatees under such will, to specifically enforce an alleged contract between plaintiff and the deceased, by which deceased obligated himself to bequeath to plaintiff by his will the sum of fifty thousand dollars. Demurrers to the complaint on the ground, among others, that

The case stated by the complaint, so far as material, is substantially as follows: From the year 1870 to a time not definitely alleged, but according to a recital extending over a period of forty years, deceased was engaged in conducting a large hotel and hotel business in the city of Sacramento, known as the Western Hotel, and during all of said time plaintiff was in the employ of deceased “as the chief clerk, accountant, bookkeeper and business confidant” of deceased “in the management and operation of said hotel, hotel business and all and other sundry business connected with the above mentioned business,” and during the absence of deceased, as his representative and in the capacity of assistant manager of said business. During all of said time the services of plaintiff were in all respects satisfactory to deceased. During all said time plaintiff and deceased resided at said Western Hotel, associated together and “sustained each toward the other relations of mutual respect, confidence and trust.” The business was prosperous, yielding to deceased a profit approximately of thirty thousand dollars each year. While plaintiff was so in the employ of deceased he received offers of similar employment in and about hotels in Sacramento and San Francisco at a higher compensation “from time to time” from “divers and sundry persons.” Nothing more definite is stated as to these offers. Plaintiff communicated the fact of these offers, as made, to deceased. For the purpose of inducing plaintiff to continue in his employ, deceased agreed with plaintiff that “if he, said plantiff, would remain with him, . . . and thereafter attend to, render and perform at his said Western Hotel, such services as he, plaintiff, was then performing for” said deceased, “so long as he, . . . owned or conducted said Western Hotel, that he . . . would by his last will and testament devise and bequeath to plaintiff the sum of fifty thousand dollars.” It is impossbile to ascertain from the complaint anything about when this agreement was made. Plaintiff relied upon this promise, consented to so remain in the employ of deceased, and did so remain until deceased “retired from the management, conducting and ownership of said Western Hotel.” There is no information in the complaint as to how long after the agree

As is urged by respondents, it is nowhere alleged in the complaint that deceased did not provide for the promised legacy in his will. No breach of the contract is alleged, without which, of course, plaintiff could not be entitled to relief of any kind. However, passing this and other objections made to the complaint, we will consider the main question presented by this appeal.

There is no dissent in the authorities from the proposition that one may make a valid contract with another to devise or bequeath property by his last will in a certain specified way. It is clear that in the event of a breach of such a contract, the party damaged has an action at law for the damage caused by such breach of the promisor, and in some cases this, by reason of the circumstances, may be his only remedy, for a resort to any equitable remedy can be had only where the circumstances are such as to make the case one within the

Where the party damaged is restricted to his remedy at law for the breach, he must necessarily proceed upon the theory that he is a “creditor” of the deceased, having a “claim against the estate” “arising upon contract,” within the meaning of those words as used in our probate law, and he is subject to the provisions of our statutes requiring presentation of claims to the executor or administrator and judge. (Code Civ. Proc., sec. 1490 et seq.) In the absence of such presentation, such a claim, by express provision of the statute, is forever barred. While, owing to the nature of the contract before us, a final breach cannot be regarded as occurring until the death of the deceased, the breach was committed by the deceased, and the liability on account thereof is his. There is no decision in this state that is contrary to this view. Expressions in some opinions which, when detached from their context and considered alone, might appear to give some support to a contention that such a claim need not be so presented, furnish no such support when considered in connection with the question under discussion. On the other hand, it was substantially stated in Etchas v. Orena, 127 Cal. 588 , [ 60 Pac. 45 ], that it is essential to an action for breach of contract to compensate one for services by making provision in such person’s favor in a will, that a claim against the estate be presented, that no claim could exist against the estate in such case except one founded upon the fact that such services were performed and no provision made in the will for compensation, and that the particulars of the claim should be stated. It is well settled that where presentation of a claim against the estate is essential, a complaint which does not aver that the claim has been presented fails to state a cause of action. (Burke v. Maguire, 154 Cal. 462 , [ 98 Pac. 21 ]; Morse v. Steele, 149 Cal. 305 , [ 86 Pac. 693 ].) The complaint here contains no allegation as to the presentation of a claim by plaintiff to the executors and executrix, and it is not suggested that it could truthfully have been amended to show such a presentation. The claim of counsel is that it was nbt necessary to present a claim. It has been held that where services have been performed in pursuance of a contract to leave property by will to the one rendering the service, and the promisor fails to

It is settled that courts of equity, to use the language of Pomeroy, “will, under special circumstances, enforce# contract to make a will or to make a certain testamentary disposition. . . . not by ordering a will to be made, but by regarding the property in the hands of the heirs, devisees, assignees, or representatives of the deceased promisor, as impressed with a trust in favor of the plaintiff, and by compelling defendant, who must, of course, belong to some one of these .classes of persons, to make such a disposition of the property as will carry out the intent of the agreement.” (McCabe v. Healy, 138 Cal. 81 , 84, [ 70 Pac. 1008 ].) The italics are oars. What are the “special circumstances” that warrant a resort to equity 1 We think it may safely be asserted that in the hundreds of cases to be found in the reports in which this doctrine has been considered, none can be found to support appellant’s claim that the circumstances of this case are such as to entitle him to relief in equity.

' Passing without discussion other requisites, it is elementary that where, as here, the primary right of a party is legal in its nature, as distinguished from equitable, and one for which the law affords some remedy, as here damages by Way of compensation for breach of contract, a proper exercise of the equitable jurisdiction will not give equitable relief in any ease where the legal remedy is full and adequate and does complete justice. No principle of equitable jurisprudence is more firmly established than this. (1 Pomeroy’s Equity Jurisprudence, sec. 221.) For instance, the exclusive jurisdiction of equity to grant relief by way of specific performance of a contract will be exercised only in those cases where the legal remedy of compensatory damages is insufficient under the circumstances of the case, in the opinion of the court," to do complete justice between the parties. The fact that in applying this doctrine, courts of equity have established the further rule that in general the legal remedy of damages is inadequate in all agreements for

There is no force in plaintiff’s contention that the rule in this respect has been changed in this state by an amendment of section 3384 of the Civil Code. That section as originally enacted in 1872, in addition to providing, as it does now, that “except as otherwise provided in this article, specific performance of an obligation may be compelled,” contained four subdivisions stating instances in which such relief would be granted, and the second of these subdivisions read “When the act to be done is such that pecuniary compensation for its nonperformance would not afford adequate relief.” This section was amended in 1874 by striking out all of these four subdivisions. There is no provision in the article in terms precluding the relief of specific performance in the case of such a contract as the one before us, even though pecuniary compensation would afford adequate relief. Neither is there any provision in terms precluding such relief as to any obligation to pay money. If counsel’s claim in this behalf be correct, the effect of the amendment is to authorize a decree of specific performance of the obligation of the maker of a promissory note or any other obligation to pay money. Of course no such intent as that claimed can be" attributed to the amendment. The reason for the amendment apparently was that it was deemed unwise to attempt to specify by statute all the particular circumstances under which such relief might be granted, and it was thought best to provide simply that it could always be granted, except as otherwise provided in the article. But this obviously was not intended to dispense with the fundamental requirement that the law does not afford an adequate remedy. That section simply means that specific performance of an obligation may be compelled in any case where the circumstances are such as to authorize such relief under the well settled doctrines of equity jurisprudence, except as otherwise provided in the article. Over and over again since such amendment was made this court has said that inadequacy of any remedy at law is absolutely essential to the granting of a de

There is absolutely nothing in Glock v. Howard etc. Co., 123 Cal. 1 , [ 69 Am. St. Rep. 17 , 43 L. R. A. 199 , 55 Pac. 713 ], or Johnston v. Blanchard, 16 Cal. App. 321 , [ 116 Pac. 973 ], in conflict with the views we have expressed. These eases simply recognize the rule prescribed in this state by section 3389 of the Civil Code, that a contract otherwise proper to he specifically enforced will be so enforced, notwithstanding it contains a provision declaring the amount which shall be presumed to be the amount of damage sustained by reason of a breach, or one for a penalty in the event of nonperformance. Where this is the situation, if the circumstances are such as to make the case a proper one for specific performance, the party may waive his stipulated damages and maintain his action in equity. But the rule does not render a contract one as to which specific performance will be decreed simply because it contains a provision for liquidated damages, which appears to be the logical effect of plaintiff’s contention.

Surely there can be no doubt upon the question whether plaintiff had a full and adequate remedy at law. It is to be presumed that plaintiff has stated his case in his complaint as favorably to himself as he can. As the same is described therein, there was nothing extraordinary or peculiar in the nature of the service to be rendered by plaintiff for deceased. At best he was the assistant manager of the hotel business of deceased conducted at the Western Hotel in Sacramento, and was a faithful and efficient employee of deceased, having his absolute confidence. The services that he was rendering were services that could be, and in the contemplation of the parties were to be, compensated in money. He was rendering those services at a stipulated rate of compensation in

It thus appears that the complaint does not state facts sufficient to entitle plaintiff to any relief, legal or equitable. It fails to show him entitled to any equitable relief for the reason we have just discussed. It fails to show him entitled to recover at law, in view of the want of an allegation showing presentation of his claim to the executors and judge for allowance. It is true, as said by counsel for plaintiff, that monetary relief will be -given as an alternative for the specific performance to which a plaintiff is really entitled, where, through no fault of his, specific performance cannot be decreed. But manifestly that rule has no -application here where plaintiff has no right to specific performance. It is only where the beneficiary of a promise to make a will has a right to specific performance that the property of the deceased in the hands of the heirs, devisees, and legatees is regarded as impressed with a trust in his favor, and no monetary relief can be awarded here, as suggested, upon the theory of breach of trust. For the reasons we have stated, the complaint fails to state facts sufficient to constitute a

In his closing brief, filed in lieu of oral argument, counsel for plaintiff for the first time contends that the lower court was guilty of an abuse of discretion in “refusing leave to amend” the complaint, after demurrer sustained. The transcript shows simply that an order was made July 19, 1913, sustaining the ‘demurrer without leave to plaintiff to amend, and that on December 20, 1913, judgment was given dismissing the action.' There is nothing to show or even intimate that plaintiff ever asked leave to amend or that he desired to amend. It appears to- be the settled rule in this state that it is too late to make such a point for the first time in this court, when nothing appears in the record to show an abuse of discretion on the part of the lower court. (Buckley v. Howe, 86 Cal. 596 , 600, [ 25 Pac. 132 ]; Robertson v. Burrell, 110 Cal. 568 , 579, [ 42 Pac. 1086 ]; Durrell v. Dooner, 119 Cal. 411 , 413, [ 51 Pac. 628 ]; Prince v. Lamb, 128 Cal. 130 , [ 60 Pac. 689 ].) Certainly no abuse of discretion is shown or suggested by the record before us. The allegations of the complaint are such as to make it reasonably certain that -the pleading could not have been amended truthfully so as to make it state a cause of action. If plaintiff thought otherwise, he should have applied to the court below for leave to amend.

The judgment is affirmed.

Shaw, J., Sloss, J., Lorigan, J., Henshaw, J., and Melvin, J., concurred.