Smith v. Bliss

To the plaintiff’s second amended complaint the defendant interposed a demurrer. The demurrer was sustained without leave to amend and from the judgment entered thereon the plaintiff has appealed. Plaintiff’s pleading purported to state four different causes of action.

First Cause of Action.

In her brief the plaintiff states that the first cause of action is one in which she seeks to recover the unpaid balance due on a contract for personal services. The first cause of action is very long but the following are its principal allegations. Prior to 1932 A. F. Coffin and Lulu H. Coffin were husband and wife residing in Oakland. Mrs. Coffin had an intimate friend, Irene Martin, for whom she had done and was continuing to do many kind acts. In the latter part of that year Mrs. Coffin approached the plaintiff asking the latter to give up her employment in the millinery business and “ . . . devote all her working time to her (Mrs. Coffin’s) interest and welfare and to be her lifelong friend. ...” Mrs. Coffin stated that she would compensate the plaintiff well, would give as bountifully to her as to Irene Martin, and that she would accomplish these things by creating joint bank accounts for plaintiff, or by making provision for plaintiff in her will. Plaintiff accepted said proposition and continued to act thereon until the date of Mrs. Coffin’s death. Mr. Coffin died testate on March 5, 1935. Among others he named his wife as one of his legatees. Mr. Harris was appointed executor of that will and proceeded with the probate proceedings. Later Mrs. Coffin stated to Irene Martin and to this plaintiff that she would make only a part provision for them in her will and the greater part of the provision she would create by the said joint bank accounts. In carrying out that

The foregoing is clearly an attempt to plead a contract of employment. By its express terms the contract was to continue from the date it was made in 1932 down to the date of the death of Mrs. Coffin. The amount of the compensation depended on the amount of the accounts in favor of Irene Martin. Until the date of Mrs. Coffin’s death that amount could not be known. Hence the amount to be put in a joint bank account in favor of the plaintiff, or the amount to insert in a will, could not be known. Obviously said contract could not be performed during the lifetime of the promisor (Mrs. Coffin). It was therefore clearly within the statute of frauds. (Code Civ. Proc., sec. 1973, subd. 6; Hagan v. McNary, 170 Cal. 141 [ 148 Pac. 937 , L. R. A. 1915E, 652].) But the plaintiff argues the defendant is estopped from pleading the statute of frauds. (Seymour v. Oelrichs, 156 Cal. 782 [ 106 Pac. 88 , 134 Am. St. Rep. 154 ].) That authority is not applicable in the instant case. The fraud on which the estoppel rested in that case was the promise to make a written contract and the subsequent failure to carry out that promise (pp. 799, 800). It follows that the first cause of action failed to state facts sufficient.

Second Cause of Action.

By a direct allegation to that effect the plaintiff adopts all of the allegations in the first cause of action and then alleges as follows. That on the 31st day of August, 1937, Mrs. Coffin, in consideration of services rendered, created a trust in favor of this plaintiff and “ . . . that the said Mrs. Coffin declared her intention by her statements, instructions, declarations, and other acts, and by the writing hereinabove alleged and set forth. ...” The corpus of the trust was to be $20,000 “ . . . then in the possession of the executor of her husband’s estate. ...” Mrs. Coffin would act as trustee during her life, Mr. Bliss would act as trustee thereafter. During her life and prior to obtaining actual physical possession of the said money, Mrs. Coffin retained control as trustee for herself and the plaintiff. Later Mr. Bliss received the legacy from the estate of Mr. Coffin. The plaintiff

Talcing up all of the allegations of the first cause of action, together with the allegations of the second cause of action, it appears at once that no $20,000, or any other sum, was segregated or designated as the corpus of the trust, or was at any time in the possession of Mrs. Coffin. Assuming that the plaintiff is discussing funds to be received from the estate of Mr. Coffin, it is equally clear that such moneys were never received during the life of Mrs. Coffin. Moreover it is clear that there is not a word to the effect that Mrs. Coffin, cither orally or in writing, made any. transfer impounding any funds whatever in a trust or assigned her rights in any moneys in favor of anyone as the nominal trustee thereof. Conceding at once that a valid trust may be created as to personal property (Booth v. Oakland Bank of Savings, 122 Cal. 19 [ 54 Pac. 370 ]), the facts in the instant case do not justify us in applying that rule. (Chard v. O’Connell, 7 Cal. (2d) 663 [ 62 Pac. (2d) 369 ].) To constitute a valid enforceable trust the declaration thereof should show “1. An intention on the part of the trustor to create a trust, and, 2. The subject, purpose, and beneficiary of the trust.” (Civ. Code, sec. 2221.) The allegations are insufficient to show an intention to create a trust. The allegations show an intention to create a joint bank account, but a failure to do so. To constitute anyone a trustee there must be a showing that such trustee accepted the trust. (Civ. Code, sec. 2222.) But there is no allegation that anyone, having possession of the subject matter, consented to act as trustee during the life of Mrs. Coffin or afterwards. Giving all of the allegations the fullest meaning to which they are entitled, there was no trust created. (Molera v. Cooper, 173 Cal. 259 , 260-262 [ 160 Pac. 231 ].) The memorandum dated August 31, 1937, certainly had as much force the day it was written as it had after the death of Mrs. Coffin. However it must be conceded at once that said memorandum was of no force or effect as a draft or an assignment and binding on Mr. Harris as executor of the estate of Mrs. Coffin, nor, after the death of Mrs. Coffin, did it have such force or effect on Mr. Bliss who

Third Cause of Action.

The plaintiff next contends a constructive trust was created in her favor. Again she realleges all of the foregoing facts. Continuing she alleges that on the 31st day of August, 1937, Mr. Harris, as executor of the estate of A. F. Coffin, deceased, held a legacy in the sum of $27,058.03, payable to Mrs. Coffin. That “said executor Harris was holding said money subject to court order of distribution”. On the date last mentioned “ . . . Mrs. Coffin granted, conveyed, transferred and assigned to the plaintiff a joint tenancy interest with right of survivorship in and to $20,000 of the said money in the possession and control of Mr. Harris as executor of her deceased husband’s estate”. Mrs. Coffin promised that if she survived the operation when the $20,000 was received that she would deposit the same in account No. 47534 in the Crocker Bank and if she did not survive then and in that event Mr. Bliss, her executor, would make the deposit. On the 17th day of November, 1937, the executor of the estate of Mr. Coffin paid $20,000 to the defendant who ever since has held the same for this plaintiff as survivor in the joint tenancy account. The plaintiff thereafter demanded of the defendant that he pay said moneys to her, but he refused. The plaintiff contends the foregoing facts showed a constructive trust. We think not. A constructive trust is one included among those classed in our statutes as involuntary trusts. (Fulton v. Jansen, 99 Cal. 587 , 590 [ 34 Pac. 331 ].) Involuntary trusts arise under such facts as are enumerated in Civil Code, section 2224. But in the cause of action before us there is no fact alleged showing that this defendant has gained “ ... a thing by fraud, accident, mistake, undue influence, the violation of a trust, or other wrongful act. . . . ”

Furthermore the facts show that plaintiff had a remedy at law to sue for compensation. Under such facts equity will not take jurisdiction. (De Mattos v. McGovern, 25 Cal. App. (2d) 429 [ 77 Pac. (2d) 522 ].)

Fourth Cause of Action.

As a fourth cause of action the plaintiff sets forth a count in quantum meruit for services rendered. She repeats

At $100 per month during the period of service there would have accrued and been payable the sum of $6,700. But it will be remembered that the plaintiff admits she has been paid a sum in excess of $10,417.13. It follows that she has been paid more than her services were reasonably worth and that she is not entitled to claim any further sum in a cause of action founded upon quantum, meruit. Under this cause of action the special agreement made by the parties as to the value of the services is not enforceable as such. The amount of relief that may be obtained is the reasonable value of the services rendered and not the agreed value. (De Mattos v. McGovern, supra.)

The judgment appealed from is affirmed.

Nourse, P. J., and Spence, J., concurred.