Kay v. Karas

This is an appeal by Speros Karas, executor of the estate of Peter Ganas from a judgment in the total sum of $6,048.03 in favor of plaintiff based upon two causes of action.

The complaint set forth as a first cause of action that at the date of the death of Peter Ganas, November 16, 1945, plaintiff was the sole owner of two savings deposit accounts standing in the name of Peter Ganas; that on December 21,1945, plaintiff, who had been appointed special administratrix of the estate of Peter Ganas, permitted defendant, who was subsequently appointed executor of the estate, to have possession of the two passbooks, and that thereafter defendant withdrew the balances and became indebted to plaintiff in the sum of $3,676.81; that defendant refused and neglected to pay any portion thereof to plaintiff. The second cause of action stated that the deceased was indebted to plaintiff for personal services rendered by her to the deceased at his request, consisting of “serving as a grocery clerk in the grocery store operated by said deceased . . . checking and keeping account of rationed goods, keeping stock in order and waiting on trade in said grocery store; purchasing, preparing and cooking food for medically prescribed diet for said decedent; nursing care; furnishing transportation to decedent to and from his residence; taking said decedent to and from his doctor’s office and hospital for treatments and ex-rays . . . from the 1st day of January, 1943 to and including the date of said decedent’s death.” It was further alleged that the executor rejected a claim for the amount due for personal services.

The answer admitted “that on the 16th day of November, 1945, there were two Savings Deposit Accounts in the name of the decedent, Peter Ganas, one in the Bank of America, National Trust & Savings Association, . . . No. 4819, in the

Evidence was introduced and the court made findings of fact including the following: “(2) It is true that on said 16th day of November 1945, plaintiff was the sole owner of two savings deposit accounts standing in the name of Peter Ganas ... (4) It is true that on or about January 9, 1946, and in his capacity as executor of the estate of said decedent, defendant withdrew the balances of said savings accounts and thereupon became, and ever since has been indebted to plaintiff in the sum of $3,694.95, which sum is the total on deposit in said accounts at the time of such withdrawals . . . [Interest on this amount from January 9, 1946, to the date of judgment was found to be $362.08.] (7) It is true that said Peter Ganas, deceased, was at the time of his death indebted to plaintiff in the sum of $1,991.00 for personal services rendered by plaintiff to said Peter Ganas, deceased, at the special instance and request of said decedent. That said personal services consisted of the following: serving as a grocery clerk in the grocery store operated by said deceased . . . checking and keeping account of rationed goods, keeping stock in order and waiting on trade in said grocery store. That said sum of $1,991.00 is the reasonable value of said services so rendered . . . almost continuously over a period from the 1st day of January 1943 to and including the date of said decedent’s death.” In fixing the amount for personal services the trial court allowed only for services performed by plaintiff in connection with the conduct of the grocery business.

Defendant challenges the sufficiency of the evidence to justify the finding that plaintiff was the sole owner of the two savings accounts and that Ganas, the decedent, at the time of his death was indebted to plaintiff in the sum of $1,991 for personal services rendered at the special request of Ganas.

Defendant contends that plaintiff’s case failed to show any sum due her for personal services: “ (1) There was no express or implied promise on the part of decedent to pay any com

Plaintiff’s disqualification under section 1880(3), Code of Civil Procedure, was waived by the defendant in that he took her deposition under sections 2055 and 2021, Code of Civil Procedure. (Moul v. McVey, 49 Cal.App.2d 101 ,106 [ 121 P.2d 83 ]; Mc Clenahan v. Keyes, 188 Cal. 574 [ 206 P. 454 ]; Lohman v. Lohman, 29 Cal.2d 144 [ 173 P.2d 657 ].) Defendant argues that there was no agreement, but that the testimony shows only a hope built upon a vague suggestion that she might be paid by decedent. It is further argued that certain salary receipts signed by plaintiff negative any promise to pay in the future. There is evidence that plaintiff acknowledged the payment of certain amounts but that the acknowledgment was made at the decedent’s request for use in connection with his income tax returns. This court is not prepared to say that the explanation of plaintiff is untrue. The trial court’s conclusion must be accepted on appeal on this factual issue.

Plaintiff came to San Francisco in 1942, and was introduced during the same year by her father’s brother to Peter Ganas. Plaintiff testified that she assisted Peter during the Christmas 1942 period. The evidence shows: “A. Well, every so-After the beginning of 1942, when I finished my work, I thought I was through, and then my Uncle Shoras said to me, ‘Peter Ganas’ niece you are, and you should help him more often,’ and I says, ‘Well, Uncle, I don’t see how I can do it, because I work all day’; he says, ‘You will work at night, after work, a few hours; that wouldn’t be so very much for you’; so I agreed to do so; so in 1943, the early part, month of January, we sort of made arrangements which I should go to work. Q. Who made that arrangement? A. Peter Ganas. • Q. Peter Ganas and you ? A. And myself . . . At the beginning I thought I was only going to help him just for a few days, and then it eventually grew that I was working all the time. He told me I was going to work all the time. Q. Peter Ganas did? A. Peter Ganas. . . . Q. Was anything said by you or him as to whether you would be paid for your work? A. At first I thought I didn’t want to come to work, thinking that I wouldn’t get paid, and then he says—he told me, ‘I want you to work and I am going to take care of you for working for me. Q. Did he ever say how much he was going to pay you for working for him? A. No.

When there is evidence to show that compensation was contemplated, although no definite rate was agreed upon, the reasonable value of the services rendered may be recovered. (Lundberg v. Katz, 44 Cal.App.2d 38 [ 111 P.2d 917 ]; Manford v. Coats, 6 Cal.App.2d 743 [ 45 P.2d 395 ]; Zellner v. Wassman, 184 Cal. 80 [ 193 P. 84 ].)

A review of the evidence upon the issue whether a gift of the two savings deposit accounts was made, shows that plaintiff testified that in the presence of Mrs. Manley Harris he gave the books to plaintiff. The following testimony appears: “A. When he had taken the books, he turned to me and says, ‘Ruby, I want you to have these books for yourself. These are your books.’ . . . Well, I looked at him surprised, then he says, ‘Don’t look at me surprised. These two books are yours. I want you to have them. I’m giving you these two books.’ . . . I says, ‘Uncle Peter, why are you giving me these two books and the money in those two books?’ He says, ‘Ruby,’ he says, ‘I have watched—I have studied you. You have been faithful, you have been honest, and you gave me great happiness that no other persons has given me.’ He said, ‘Your grandmother was the same in many ways.’ He says, ‘When

Mrs. Manley Harris testified: “We had our dinner, and all of a sudden Uncle Peter lifted up—he wore many coats, heavy woolen, warm coats, and he lifted up his sweater, or opened one, and lifted up the sweater and reached in his pocket and took out a pocket hook about the size of an envelope, like that (illustrating). Q. The size of an envelope, you think? A. About that size. You know, a man’s wallet, that shape, that type of purse, and he took out of that some papers, looked like they were just papers, and then he took out bills, and then he took out the two books, and he said, ‘Ruby, I am giving you these books and I’ - ‘You have been good to me, nobody has ever been so good, I have tested you, I have watched you, and you are honest and good, you are like your grandmother, and you have lost a great deal, you lost your business, and I want to give you these books, these are yours, these will help you later. ’ I was quite surprised, and Ruby was—seemed to be stunned. ... A. Well, she—Ruby spoke—she said, ‘Why, Uncle Peter, why do you do that?’ He said, ‘Because I want you to have it, and I want you to have what I give you, I want it for you, to make up for all the goodness you have shown me, help you. ’ ’ ’ Mrs. Harris also testified that when plaintiff went East to visit a relative she kept the books for plaintiff; that Peter Ganas asked for the books several times to make deposits but made no withdrawals. After the death of Ganas the books were delivered to the plaintiff’s attorney who subsequently turned them over to defendant executor.

The trial court decided that • the withdrawal of the books from plaintiff and the making of nine additional de

A gift of a savings passbook may be held to be a gift of the money on deposit, subject to proper notice to the bank of the assignment, for the purpose of withdrawal by the donee. (Ornbaun v. First Nat. Bank, 215 Cal. 72 [ 8 P.2d 470 , 81 A.L.R. 1146 ].) In the present case there were no withdrawals by Ganas and none by plaintiff. Notice to the bank of the assignment was not necessary unless plaintiff sought to withdraw part or the whole of the funds. If the trial court believed the statements of plaintiff and Mrs. Harris, the gift was complete. In Wilson v. Crocker First Nat. Bank, 12 Cal.App.2d 627 , 630 [ 55 P.2d 1208 ], the court said: “The rule that a gift of a savings pass-book is a gift of the money on deposit rests upon the well-settled doctrine that a gift of the symbol of a thing is a gift of the thing itself. This rule has been accepted and affirmed by all the authorities in this state.” Each case may present a different problem—involving intent.

Unless there is evidence showing an abuse of the trial court’s discretion appellate courts should not interfere. Here the conduct of the parties corroborates the gift of the passbooks (Moore v. Spremo, 72 Cal.App.2d 324 [ 164 P.2d 540 ]) and the performance of personal services at the request of decedent, which should be compensated for upon the basis of their reasonable value. (Zellner v. Wassman, supra.)

The judgment is affirmed.

Peters, P. J., and Bray, J., concurred.