Payne v. Bank of America National Trust & Savings Ass'n

Plaintiff appeals from an adverse judgment in an action brought to recover $12,125 for services rendered by him to defendant’s testator, Harvey Priester, including the reasonable value of the use of plaintiff’s furniture.

The complaint consisted of six counts. One count was based on an oral contract under which plaintiff claimed Priester agreed to pay him the reasonable value of services performed “in the capacity as accountant, business adviser, investment counsel, insurance adviser, director in decedent’s business, and as a nurse, protector and confidante, and in connection with the keeping and soliciting of accounts for insurance by decedent.” Another count was grounded on an unfulfilled promise of the decedent, Priester, to reimburse plaintiff for the services enumerated above, as well as for the use of certain of plaintiff’s furniture, either in “cash or by the transfer to plaintiff at the date of his death of one half of decedent’s estate. ’ ’ In two of the counts, plaintiff alleges causes of action based on the theory of a quantum meruit recovery. Plaintiff also sued on common counts for the reasonable value of his services and use of the furniture belonging to him. The complaint alleges that plaintiff duly presented a claim for $12,125 to defendant, as executor of the estate of Harvey Priester, and that said claim was rejected. Defendant in its answer denied the allegations of plaintiff’s complaint and also set up the defense that each of the causes of action was barred by subdivision 1 of section 339 of the Code of Civil Procedure.

The case was tried without a jury. By defendant’s invoking section 1880, subdivision 3, of the Code of Civil Procedure, which forbids a plaintiff’s giving testimony in support of his claim against a decedent, plaintiff was precluded from testifying concerning his claim. Plaintiff called six witnesses with respect to the character of the services he rendered and the promise to compensate him therefor. One of his principal

Plaintiff and the decedent, Harvey Priester, had known each other for about 20 years. Their friendship had grown very intimate; they were inseparable, bosom friends. They dined frequently at each other’s home and had mutual business interests. They had occasionally made joint investments in property and would sometimes purchase shares of stock in the same company. They often discussed financial and business affairs during their numerous social visits.

Priester had owned and operated an insurance business since about 1933. His office manager, Miss Trase Palmer, testified that up until April or May of 1950, Priester customarily arrived at the office about 11 a.m. and left at 2 p.m. He spent the balance of the day on the outside. Plaintiff, an accountant by profession, became employed in about 1940 as secretary-treasurer of a firm named Dodge, Incorporated. He handled the insurance business and related matters of the Dodge company, which had been one of Priester’s insurance accounts long prior to plaintiff’s employment there. The Dodge account comprised about five per cent of Priester’s business and required periodic discussion with plaintiff. Priester’s income tax returns were prepared by plaintiff, who submitted regular bills for this service, all of which were paid.

In the summer of 1947, Priester underwent an operation on his back, which disabled him for about two months. Miss Palmer testified that upon his return he was able to resume his accustomed routine for the next few years. Early in 1950 he began to suffer increasingly from an abdominal ailment. In August, 1950,' plaintiff was visiting Priester at his home when Priester hemorrhaged and had to be taken to a hospital, where he spent five days. Thereafter, Priester continued to go to his office on a curtailed basis until he reentered the hospital in the latter part of September, 1950, for abdominal surgery. After a month in the hospital, Priester returned home where he remained under the care of a registered nurse, Ona O’Neill, until December 12, 1950. Miss O’Neill testified that plaintiff spent several nights at Priester’s house after his return from the hospital and that he was a constant visitor during her employment there. When questioned about the content of plaintiff’s conversations with Priester, she

Priester returned to his home in May, 1951, and stayed there until his death on August 11, 1951. The household help included a housekeeper-cook and a nurse who was on duty until Priester died, with an additional nurse when his condition worsened near the end. Miss Palmer continued to have charge of Priester’s office, attended to his insurance business and supervised the work of a bookkeeper and stenographer. She testified that she had run the office since 1940.

Mr. Lindahl testified at length concerning plaintiff’s services to decedent. He stated that plaintiff advised Priester with reference to investment matters, but he was able to refer specifically only to an investment possibility in a plastic business that Priester asked plaintiff to check for him. He stated that plaintiff and Priester often discussed stocks, properties, and real estate, but he could recall the name of only one stock, and this was one purchased by both men. He did not recall any particular parcel of real estate that was discussed, but did know both men held a mortgage jointly. He asserted Priester would often consult with plaintiff “regarding different phases of the insurance business, ’ ’ but Lindahl said these consultations usually took place during social occasions and he could give no details beyond his general statement. Lindahl estimated that plaintiff visited with Priester each day for periods ranging from one-half hour to five hours during the last year of decedent’s life, took him for walks and drives, and engaged doctors and nurses for him.

Other witnesses, including plaintiff’s son and two mutual friends, testified to purported financial advice given decedent by plaintiff as well as counsel allegedly given him with respect to his insurance business. These discussions were almost invariably held on social occasions, during the final year of decedent’s life, and the testimony as to the nature of the discussions was either vague and nebulous or admittedly conducted outside the presence of the witness. Miss Pape, an employee of the Dodge company, testified that during the last

Miss Palmer also was comprehensively examined. She testified that since plaintiff was Priester’s best friend, she naturally turned to him with respect to various personal affairs which arose when Priester was ill. Plaintiff was consulted by Miss Palmer regarding the employment and payment of certain of Priester’s servants and the checking of his hospital and medical bills. Plaintiff and Miss Palmer looked after a boat owned by Priester when it was not in running condition. From time to time after his day’s work at Dodge was over, plaintiff stopped by at Priester’s office and discussed insurance collections with her, and occasionally with Priester at the latter’s home. Miss Palmer testified that plaintiff rendered no services as an auditor, and none as an accountant other than the preparation of the income tax returns for which he was paid.

Lindahl testified that on several occasions he heard Priester tell plaintiff that “he would be taken care of,” that “he would take care of him later.” Miss O’Neill testified in the same vein. She stated that while she was nursing him, Priester “would tell me what a grand person Mr. Payne was, and that they had been such long friends, and what Mr. Payne had done for him, and that sort of thing. And I told him it was certainly wonderful to have friends like that. And he said, ‘Well, he will be well paid for it,’ . . .”

Miss Palmer testified to a conversation she had with plaintiff a week before Priester died. Plaintiff telephoned her one evening from Priester’s house to advise her Priester wished to speak with her. Priester then told her: “Bill [plaintiff] is here and we are going over some matters. You get the insurance policy . . . and . . . the insurance business. I am giving Bill $1,000.00 and Edna [the nurse] is in the room as a witness. ’ ’ Plaintiff received the sum of $1,000 mentioned above in cash.

Priester died testate and his will was admitted to probate. The probate file was received in evidence. By his will, Priester bequeathed his insurance business to Miss Palmer provided she survived final distribution of the estate. After making certain legacies, the will provides that a residuary trust be

We have carefully considered the court’s findings, certain of which consist of philosophical observations upon the priceless gift of friendships and are immaterial, while some, clearly irrelevant because of other findings made which fully dispose of the contested issues, may be disregarded as surplusage. Such findings as are essential and determinative of the questions here posed are as follows: that deceased, during his lifetime, employed plaintiff as an accountant, but that these services were limited to the preparation of the annual income tax returns of deceased and to occasional advice to deceased’s bookkeepers as to the posting of items pertinent to income tax matters; that plaintiff made annual charges for his accounting services for each of the years from 1947 to 1951, inclusive, all of which were paid, the last statement for such services having been rendered by plaintiff in July, 1951.

The court further found (Finding V) : “It is not true that deceased during his lifetime employed and/or retained the services of plaintiff under an oral or written contract or otherwise to perform services in the capacity of business adviser * and/or investment counsel and/or insurance adviser and/or director in decedent’s business and/or nurse and/or protector and/or confidante and/or in connection with the keeping and/or soliciting of accounts for insurance by decedent. It is not true that decedent agreed to pay or to reward plaintiff for such alleged services or for any thereof the reasonable value thereof on or before the date of decedent's death, and it is not true that decedent agreed to pay plaintiff the reasonable value of such alleged services or any thereof if plaintiff continued to render such services or any thereof to and until the death of decedent. It is true that plaintiff and decedent were close friends over a period of many years, that as such they transacted business one with the other and on many occasions talked over and exchanged opinions and advice on matters of insurance and

The court found that except for the obligation to pay for plaintiff’s income-tax work, no agreement existed by which decedent was to pay plaintiff for any services in cash or by the transfer to plaintiff at the date of his death of one-half or of any other specific portion of decedent’s estate; that because of the findings made, “it becomes immaterial for the court to determine what plaintiff’s services to deceased might have been reasonably worth if those services had been rendered on a commercial basis and either party had understood that they were to be paid for on such a basis; but the court does find that if the services had been performed on such a basis and under such an understanding, they would have had a substantial reasonable value.”

After finding that decedent did not rent any furniture from plaintiff between 1935 and 1942, and that decedent was not indebted to plaintiff in the sum of $12,125 for services rendered and the use of personal property as alleged in certain of plaintiff’s causes of action, the court found: “It is true that

Plaintiff makes a forceful attack on the findings and judgment, contending that the findings are without support in the evidence, and that the judgment is contrary to the profusion of cases which have allowed recovery for the reasonable value of services rendered a decedent by a person not a member of his family. Before exploring the merits of this argument, we direct attention to the following language from Lloyd v. Kleefisch, 48 Cal.App.2d 408 [ 120 P.2d 97 ], one of plaintiff’s cited authorities, which we deem quite applicable to the instant ease; “After reading the record, we are of the opinion that, so far as the sufficiency of the evidence is concerned, this is a typical fact case. Had the jury brought in a verdict in favor of appellant there is ample evidence and inferences therefrom that would have supported such a verdict. But there is also ample evidence with inferences therefrom to support the contrary verdict. Under such circumstances, this court has no power to interfere with the judgment. ’ ’

Plaintiff produced no credible evidence of any express contract on the part of Priester to compensate him for the services he might have performed in his behalf. Nevertheless, it is the general rule that where services are performed by one, not a member of the family, and such services are voluntarily accepted, the law implies a promise upon the part of the recipient to pay what the services are reason

Tested by the principles hereinabove expressed, the

Furthermore, plaintiff was an accountant and an experienced businessman who could be expected to render bills for any services which he was rendering decedent on a commercial basis. He did so annually with respect to the income-tax work he performed for Priester, and submitted his last statement of charges in the month before Priester died. Yet the record is barren of any substantial indication that plaintiff intended to charge for the services on which he now bases his claim. While plaintiff discommoded himself greatly, and gave substantially of his time and energy, most of the care and assistance he rendered was after the regular hours of his own job and on weekends, and much of it was in the framework of the social pattern that prevailed between decedent and himself for many years prior to Priester’s illness. The trial court was justified, from a consideration of the nature and character of the services rendered and the situation of the parties, in concluding that the plaintiff’s valuable and laudable services were rendered and received as acts engendered by deep-seated friendship, unaccompanied by any corollary understanding, implied or otherwise, that an obligation to compensate for them was thereby being incurred.

Plaintiff asserts “the court’s finding as to an intention on the part of the decedent to reward the appellant by means of a Will is utterly without foundation in the evidence, and cannot stand.” Support for this finding could reasonably be inferred from paragraph III of the second cause of action of the plaintiff’s complaint, wherein he alleges under oath a promise by Priester to leave him one-half his estate, indicating that plaintiff contemplated some reward in the will. This is also inferable from testimony by a witness for plaintiff, of Priester’s declaration that he would take care of plaintiff at some later time.

On this same theme, plaintiff takes the position that in any event, he is entitled to recover by an action in quantum meruit because the legacy actually left him by Priester was insufficient compensation. He points out that this legacy, although valued at over $13,000 by the California Inheritance Tax Appraiser, is contingent in nature, so that he has in practical effect, taken nothing thereunder. This argument would be entirely tenable if the evidence stowed, and the court had found, that there was an expectation by the parties that a just compensation would be paid the person rendering the services and that this would be effected by a provision in the will. Under such circumstances (and for present purposes assuming, but in no sense deciding, that the contingent bequest to plaintiff was manifestly inadequate) the law implies a promise to pay the reasonable value of the services rendered when the promised compensation by will fails of fulfillment. (Zellner v. Wassman, 184 Cal. 80 [ 193 P. 84 ]; Estate of Rohrer, 160 Cal. 574 , 576 [ 117 P. 672 , Ann. Cas. 1913A 479].)

But that is not the present case. For it is clear from an analytic reading of Finding V, which we have previously quoted, that such intended provision in the will was not considered by the parties to be the medium of paying an existing obligation to compensate for services rendered, since no such obligation was envisioned by the parties, but was simply an understanding that the extent and measure of the reward,

The court’s finding that the services were rendered on a noncommercial basis and with no expectation by either party that a charge would be made therefor negatives any idea of a promise to compensate by will pursuant to any contract. It bespeaks, rather, an understanding that Priester would make plaintiff an object of his bounty as a faithful friend under whatever testamentary scheme he thought fitting.

Where services are rendered in the mere expectation of a legacy whose amount is to be at the entire discretion of the testator, without any contract, express or implied, to pay for the services, there can be no recovery for the reasonable value thereof. (Moulin v. Columbet, 22 Cal. 509 , 510; Lee’s Appeal, 53 Conn. 363 [ 2 A. 758 ]; Grandin v. Reading’s Admr., 10 N.J.Eq., 370 ; In re Gilbraith’s Estate, 270 Pa. 288 [ 113 A. 361 , 364]; Frankenberger v. Schneller, 258 N.Y. 270 , 273 [ 179 N.E. 492 ]; Messier v. Messier, 34 R.I. 233 [ 82 A. 996 ]; Anderson v. Houpt, 43 Ohio App. 538 [ 184 N.E. 29 ]; 58 Am.Jur., Work and Labor, § 8. Anno. 54 A.L.R. 552 .) “If services are rendered without the intent of making a charge therefor, or of creating a legal liability thereby, the fact that the person rendering them did so in the hope that the party receiving them would be grateful therefor, and would manifest such gratitude in some substantial form, such as a gift or legacy, does not give to the party rendering such services a right to recover a reasonable compensation therefor if such hopes are disappointed.” (Page on Contracts, § 1446, p. 2474, quoted in Kremmel v. Schnaufer, 4 Wn.2d 242 [ 103 P.2d 38 , 41].) The case last cited also notes with approval the following extract from Collyer v. Collyer, 113 N.Y. 442 , 449 [ 21 N.E. 114 ] : “He doubtless expected that by his kindness to her she would be induced to make a favorable disposition of her property in his favor at her death. The fact that his expectation has been disappointed furnishes no ground for now stamping what at the time were acts of kindness and generosity with the mercenary features of contract and compensation.”

As has been observed in Howd v. MacGregor, 102 Conn. 331 [ 128 A. 518 , 519], “the line of demarcation is shadowy between those expressions of the decedent which are meant and understood merely to denote an intention to give of his bounty, and those which may fairly arouse an expectation of compensation for services rendered.” In the instant case,

The judgment is affirmed.

Moore, P. J., concurred.

Mr. Justice McComb, deeming himself disquálified, does not participate in the foregoing opinion.

A petition for a rehearing was denied November 9, 1954, and appellant’s petition for a hearing by the Supreme Court was denied December 22, 1954.