186 P. 614 | Cal. Ct. App. | 1919
Plaintiff appeals from a judgment in favor of defendant, rendered upon the granting of his motion for a nonsuit. The action is based upon a claim presented to defendant as administrator of the estate of Rhoda A. Loud, deceased, which was by him rejected. As presented, the claim is as follows:
"Estate of Rhoda A. Loud, Deceased.
"To Libbie Giles, Dr.
"To services rendered by claimant to said deceased as housekeeper, companion, nurse, etc., under and by virtue of a contract with said deceased whereby she agreed in consideration of the rendition of such services to make a will in favor of claimant leaving and devising her property situate in the County of San Diego, State of California, described as lot thirty-three and the south one-half of lot thirty-four of block One Hundred Eighty-four of University Heights according to the official map thereof on file in the *369 office of the County Recorder of said County; together with the buildings upon said above described property, and the furnishings and household furniture and other personal property of said deceased in said building, $3073.82," to which was attached an affidavit that the amount thereof was justly due and no part thereof had been paid.
It is alleged in the complaint that the contract, made in April, 1915, pursuant to which the services were rendered, was oral, and that plaintiff complied with her part thereof and rendered personal services to deceased, the reasonable value of which was the sum of $3,073.82; that deceased died without devising the said real property to plaintiff in accordance with said agreement or otherwise making any provision for the payment to plaintiff of the amount claimed.
[1] The chief error urged by appellant is predicated upon the ruling of the court in sustaining defendant's objections to questions whereby it was sought to elicit testimony tending to prove that deceased in her lifetime orally agreed with plaintiff, for the consideration named, to make a will devising to her the real estate described in the complaint. That the alleged contract was invalid by reason of there being no note or memorandum thereof in writing and subscribed by deceased, admits of no question (subd. 7, sec. 1624, Civ. Code); hence there was no error in the ruling.
[2] Nevertheless, counsel for appellant insists that under her complaint she is entitled to recover upon a quantum meruit
for services rendered by her at the special instance and request of deceased. The record, however, fails to show that plaintiff offered any evidence upon such theory. The position of her counsel is summed up in the following statement: "We expect to prove, your Honor, by this witness and by most of these other witnesses, that Rhoda A. Loud said to this witness in different conversations that she would, or she intended to leave Mrs. Giles her home when she passed out of the body, and that Mrs. Giles was the best friend she ever had and rendered services for her." Conceding, however, that testimony tending to show the reasonable value of services rendered by plaintiff for deceased was proffered and an objection thereto sustained, nevertheless it cannot be said that the court erred in its ruling. The law is well settled that a cause of action based upon a rejected *370
claim against an estate of a deceased person is limited to that contained in the claim so presented. (Morehouse v. Morehouse,
At the close of plaintiff's evidence counsel stated: "We make a motion for judgment of nonsuit for failure to establish a case by the plaintiff." [4] It is true, as contended by appellant, that a party moving for nonsuit should state in his motion the precise grounds upon which he relies, so that the attention of the court and the opposite counsel may be particularly directed to the supposed defects in plaintiff's case. (Coghlan v. Quartararo,
The judgment is affirmed.
Conrey, P. J., and James, J., concurred.
