Opinion
Hearing Granted by Supreme Court Sept. 8, 1927.
Appeal from Superior Court, Los Angeles County; Ralph H. Clock, Judge.
Suit by Flora M. Caldwell against Henry E. Weiner, as executor of the estate of Henry C. Weiner, deceased. Judgment for defendant, and plaintiff appeals. Reversed. COUNSEL
N. B. Nelson, of Los Angeles, for appellant.
Redwine & Redwine and H. G. Redwine, all of Los Angeles, for respondent.
OPINION
McLUCAS, Justice pro tem.
Plaintiff appeals from a judgment for defendant in a suit brought on a rejected claim filed against the estate of the deceased, Henry C. Weiner.
The complaint alleges:
"That on or about the month of November, 1919, at Los Angeles, Cal., the plaintiff herein and Henry C. Weiner, now deceased, entered into an agreement whereby this plaintiff was to furnish said decedent Henry C. Weiner, with a home during his lifetime, including room, such meals as he should desire or request, to care and nurse him when he was ill or indisposed, and to take him into her home and treat him as one of her family, and as compensation therefor said decedent, Henry C. Weiner, promised and agreed to pay this plaintiff the sum of $25 per month for his room rent, and, in addition thereto, promised and agreed to pay this plaintiff the amount of a mortgage then upon her home, namely, a mortgage in the sum of $6,000, as soon as he should sell a certain piece and parcel of land then owned by him, and which was located near the city of Long Beach, county of Los Angeles, state of California; that immediately upon the making of said agreement the said decedent, Henry C. Weiner, came to plaintiff’s home to live and make his home, and that he resided with plaintiff and her family continuously up to the time of his death, excepting therefrom short period of time when he made occasional visits out of the city of Los Angeles; that during all of the said time that said decedent lived with plaintiff and her family this plaintiff and her family provided a home for said decedent, and treated him in all respects as one of her family, furnished him with room, such meals as he requested or desired, did some of his laundry, nursed and cared for him while he was ill or indisposed, and in all things looked after his welfare and comfort at all times, to the best of her ability; that this plaintiff has fully performed all of the conditions of said contract on her part to be performed; that on or about the month of March, 1922, said decedent, Henry C. Weiner, sold the said parcel of land owned by him in or near the city of Long Beach; that said sum of $6,000, nor any part thereof, has not been paid."
The answer denies the foregoing alleged agreement, except it is alleged by defendant that "Henry C. Weiner did promise and agree to pay to plaintiff the sum of $25 per month, and no other sum or amount, for the rent of a room in plaintiff’s residence, and for no other purpose."
The court found the following facts:
"That it is not true that on or about the month of November, 1919, or at any other time, at Los Angeles, Cal., or elsewhere, the plaintiff and Henry C. Weiner, now deceased, entered into an agreement whereby the plaintiff was to furnish said Henry C. Weiner with a home during his lifetime, including room, such meals as he should desire or request, to care and nurse him when he was ill or indisposed, and to take him into her home and treat him as one of plaintiff’s family; and that it is not true that said Henry C. Weiner promised and agreed to pay the plaintiff the amount of a mortgage then upon her home in the sum of $6,000, or any other sum, as soon as he should sell a certain parcel of land owned by him, and which was located near the city of Long Beach, Cal., or at any other time; that it is not true that said Henry C. Weiner ever at any time promised and agreed to pay plaintiff the said sum of $6,000, or any other sum, at any time or in any manner, except the sum of $25 a month for his room rent, and that the only promise which said deceased made to pay plaintiff any sum of money was to pay her the sum of $25 per month for his room rent, and this sum was paid by him to plaintiff; and that all the averments and allegations of paragraph No. I of the complaint herein are untrue; that all the allegations and denial of the answer herein are true, and all the allegations of the complaint herein are untrue."
Appellant assigns as error the insufficiency of the evidence to justify the decision of the court as to the above findings. The only testimony offered by the respondent was that of a physician, who testified that he had been intimately acquainted with the deceased for about 12 years, and saw him practically every day; that whenever the occasion required medical counsel the decedent sought it from him; that during the last 3 years of decedent’s life he was ill on only two occasions; once from a sunburn that required no other treatment than being sent home, where he was confined to his bed for about a week, and one other time for an acute attack of indigestion requiring but one treatment; that these were the only occasions in the period of 10 or 12 years when decedent needed medical advice. In addition to this testimony, respondent offered the will of the decedent, in which the decedent made bequests to appellant as follows:
"I give and bequeath to my friend Mrs. G. B. Caldwell of Los Angeles one loose diamond contained in my three stone diamond ring now worn by me, also all my picture etchings paintings in the room occupied by me. *** All my clothing and other personal effects I give and bequeath to Mrs. G. B. Caldwell to be distributed to charity as she sees fit."
Respondent further introduced the inventory and appraisal of the decedent’s estate, showing that decedent left an estate of the appraised value of $28,297.39.
Appellant offered the testimony of four witnesses. Appellant’s daughter Wilma Faust, testified to a conversation held in December, 1919, between appellant and decedent, as follows:
"A. Uncle Harry (the decedent) came out to the house-which is the name of Mr. Weiner-and he seemed very much agitated. As soon as he came in the house he said that his rent had been raised again; it had been raised several times since he had lived there, and he said that-we all three discussed the general increase in living at the time, and everything like that. Finally he said that he didn’t feel that he could afford to pay this increase in the rent, and he said that-after a great deal of discussion he finally asked my mother if he could come there to live. He told her that he wanted a home; he wanted to feel that he never would have to move again; that he had lived in a hotel all his life, practically all his life; he had been married, even then his wife was an invalid; he had to live in hotels, and he said that he wanted a home, and the home privileges, and he wanted to feel that he had a family, because he was practically alone out here except for his friends, and he said that he had felt that he couldn’t pay more than $25 a month for his room, but he wanted other privileges; he wanted to take his breakfast there always, and what other meals that he cared for, and he wanted my mother to take care of him, and he just simply wanted to be a member of the family; and in consideration of that, when he sold his property in Long Beach, he would then pay off her mortgage of $6,000. He felt that that would do her more good in a lump sum; and he couldn’t pay any more than $25 at that time; that was simply for his room, and he was going to take care of the mortgage at the time he sold his property. Q. Did he state why he couldn’t pay more than $25? A. Well, he either wasn’t working at the time, or he had what he considered a very inferior position. Owing to the country going dry he had lost a very good position and had to take a very minor position at a very small salary, but he didn’t even have that position at the time. I don’t remember that exactly. Q. What did your mother say to that? A. She told him that wouldn’t make any difference. He also said that he might not be able to pay $25 a month, might not be able to pay it every month, although he did. Mother said that wouldn’t make any difference even if he couldn’t pay it; he could always have his home there; that was the understanding, that was to be his home."
The witness further testified that the decedent soon thereafter moved into appellant’s home and occupied the best room in the house, paying only $25 per month for room rent, while others were paying $35 and $40 per month; that appellant always gave decedent his breakfast, and frequently his dinner; that he was a member of the family; that the appellant took care of his mending, and nursed him when he was ill, once when he was bedfast for ten days or two weeks, and on two or three other occasions when he suffered from heart attacks. The witness further testified that appellant left for six months, but arranged for another lady and daughter to live in the house without paying rent and keep the home open for decedent; that they took care of decedent, but did not give him his meals. The witness also testified that at different times she heard the decedent say to appellant, "Well, when I sell my land I am going to pay off your mortgage."
Nell Pryn, a witness called on behalf of plaintiff, testified that decedent told her that appellant was giving him a good home; that he was paying only $25 per month for room rent; that he had sold his property, and said, referring to appellant, "I am going to pay off her mortgage when I get my next payment; " and "Well, I am going to pay the mortgage off, and I am going to give her $6,000 to pay the mortgage off, as I have agreed to."
Mrs. Dora Koonz testified that she met decedent, and the following conversation was held:
"And then I says, ‘Well, how is everything anyhow?’ ‘Well,’ he says, ‘I am very happy, Mr. and Mrs. Caldwell are both lovely,’ he said, ‘Flo and her husband are very lovely to me. I am having a wonderful home. The first time I have had a home since my wife died.’ I says, ‘Do you think there is any chance of the mortgage being paid off?’ I was really interested by my friend’s standpoint of view, and he said, ‘Well, I am figuring now on the sale of this property,’ which I knew he had, and he said, ‘As soon as I get that sale through, I am going to do the square thing."’
J. A. Rominger testified as a witness for appellant that the decedent had listed his property with him for sale, and "he expressed at that time the reason that he wanted to sell, the agreement he had made with Mrs. Caldwell relative to paying off the mortgage that he had agreed to pay for her, and said that he would be willing to reduce the price of the land, if I could make a ready sale for him for cash." Appellant also introduced in evidence a letter from decedent, addressed to herself and family, the general tenor of which tended to show that decedent regarded himself as a member of appellant’s family. It further appears that in March, 1922, the decedent sold said parcel of land; that the said sum of $6,000, nor any part thereof, has not been paid; that the said Henry C. Weiner died about the 12th day of December, 1922; that on the 21st day of February, 1923, respondent was appointed executor of the last will and testament of the decedent, and letters testamentary were thereupon issued to him; that the appellant, pursuant to respondent’s notice to creditors, presented to respondent her verified claim on October 2, 1923, upon which this action is founded, for allowance; that said respondent, as such executor, rejected said claim in its entirety on the 10th day of October, 1923.
It is readily apparent from the foregoing review of the evidence that appellant’s claim that the evidence is insufficient to justify the findings must be sustained. Respondent’s evidence was negative and indirect in character, tending to prove that the decedent had not been ill while living in the home of appellant, therefore not requiring any care; also that decedent had left a will in which he had made certain bequests to appellant. On the other hand, the testimony offered by appellant was positive and direct, and tended to prove the alleged agreement between decedent and appellant, as well as the admission of such agreement by the decedent before several witnesses. Evidently the trial court did not believe appellant’s witnesses. This is not sufficient where the testimony is uncontradicted. It is the general rule that the uncontradicted and unimpeached testimony of a witness tending to establish an issuable fact in the case may not be arbitrarily disregarded by the trial court; that, to the contrary, such testimony must be accepted as proof of the fact which it is offered to establish, unless it can be said that such testimony is so inherently incredible and improbable as to amount to no evidence at all. Shepard v. Shepard, 65 Cal.App. 310, 223 P. 1012; Stewart v. Silva, 192 Cal. 405, 221 P. 191; Anso v. Anso, 72 Cal.App. 513, 237 P. 814; Sun-Maid Raisin Growers v. Papazian, 74 Cal.App. 231, 240 P. 47; 10 Cal.Jur. p. 1143, § 362. We do not find anything in the record indicating that the testimony of appellant’s witnesses which we have set forth is inherently improbable, or that the surrounding circumstances of the case, as disclosed by the record, were such as to render any of the testimony incredible or unworthy of belief. Respondent did not attempt to impeach or contradict the testimony of appellant’s witnesses, except as to periods of illness and the bequests given to appellant. The fact that appellant was remembered in the will of decedent does not show that it was the intention of the decedent that such bequest was in lieu of any debt which may have been due from the decedent to appellant. Such intention must be gathered from the will itself. Nothing in the will showed any such intention. White v. Deering, 38 Cal.App. 433, 435, 177 P. 516, and cases cited.
It is urged by respondent that the complaint sets forth a cause of action different from the one presented to the executor of the estate, in that the claim filed with the executor was based upon a quantum meruit, while the cause of action in the complaint is based upon an entirely different indebtedness, being one upon an express contract. Two causes of action are alleged in the complaint: One upon an express contract, the other upon a stated account. No evidence was introduced to establish a stated account. The claim presented to the executor was "for and on account of room, board, care, nursing, and home furnished to said decedent during his lifetime, at his special instance and request; that the reasonable and agreed value thereof was, and is, the sum of $6,000; that no part of which has been paid." We cannot agree with respondent’s contention that the cause of action alleged in the complaint is different than that set forth in the claim. While the rule is well settled, as held in the cases cited by respondent, that a plaintiff cannot recover upon any other cause of action than the one set out in the claim which has been presented and rejected, yet the law does not require that a claim against an estate should set forth the facts upon which it is based with the precision and detail of a pleading. Thompson v. Koeller, 183 Cal. 476, 484, 191 P. 927; Warder v. Hutchinson, 69 Cal.App. 291, 231 P. 563. Further, the claim on its face showed that it was founded upon an agreement between the parties, and stated sufficient facts upon which to base either an action on the contract or one for the reasonable value of the services performed. Warder v. Hutchinson, supra. It is only required that the claim sufficiently indicate the nature and amount of the demand to enable the executor and judge in probate to act advisedly upon it. If the claim meets this general requirement, it is sufficient, unless it fails to meet some particular requirement of the Code. Thompson v. Koeller, supra; Warder v. Hutchinson, supra.
Respondent’s further contention is that, if the evidence introduced establishes any cause of action, it is for the recovery of community property, which must be brought in the name of the husband of the plaintiff and not by the plaintiff. This contention cannot be sustained. The testimony clearly shows that the residence of appellant was her separate property, which she had received from her first husband. In so far as this action concerns the earnings from appellant’s separate property, she alone is the proper party plaintiff. If this be construed as an action to recover the wife’s earnings from other sources, she can maintain such an action without joining her husband. Code Civ. Proc. § 370, as amended in 1921 (St. 1921, p. 102).
For the reasons stated, it is ordered that the judgment be reversed.
We concur: HOUSER, J., Acting P. J.; YORK, J.