Davey v. Janson , 62 Ariz. 39 ( 1944 )

Jack C. Davey died in Maricopa County, Arizona, on November 24, 1940. Plaintiff, now the appellee, brought his action against the personal representative of the estate of deceased to recover $3,175 for legal services rendered deceased in his business affairs and for services rendered the Wallapai Brick Company in its business affairs, extending over the period of time from December 15, 1933, to and including the eleventh month of the year 1940.

The case was heard before the court without a jury, and the appellee recovered judgment in the sum of $800. Appellant herein has appealed from such judgment and the appellee has cross-appealed, claiming he should have judgment for the full amount of his claim.

Letters of administration were issued to the defendant on December 11, 1940. Notice to creditors was first published on December 13, 1940, and the time therein fixed for persons having claims against the estate to exhibit them, with the necessary vouchers, was ten months after the first publication, the estate exceeding in value the sum of $5,000. Section 38-1001, Arizona Code Annotated 1939.

All claims arising upon contracts must be presented within the time limited in the notice to creditors, and if not so presented are forever barred. Section 38-1003, Id.

Claims must be allowed or rejected within ten days after their presentation. Section 38-1005, Id.

If rejected, action by the holder must be brought within three months after rejection if then due, or two months after claim becomes due, or the claim "shall be forever barred." Section38-1007, Id.

Complaint was filed on July 9, 1941. The first question is, was it filed within three months after appellee's claim against the estate was rejected. The evidence on that point is very contradictory. That of the administratrix is to the effect that she was served with the original of the claim on March 22, 1941. This is corroborated by her attorney and his stenographer. If it was served on that date, by operation of law it was rejected ten days thereafter, or on March 31. To come within the law, the action should thereafter have been filed on June 30, 1941, but the testimony on behalf of appellee is to the effect that he served his claim on the administratrix on April 12, 1941, and not before, and this testimony is corroborated. The court decided the controverted question in favor of appellee.

[1] This finding of fact was based on conflicting evidence and under our many rulings we will not disturb that finding.

Of the total amount of this action the trial court allowed certain claims aggregating $800 and those claims were itemized in the creditor's claim that was presented to the administratrix upon which this suit was brought.

The items recognized by the trial court were as follows:

(1) A case in the Superior Court of Maricopa County entitled Beck v. Wallapai Brick Company. The creditor's claim filed mentioned the fact that the action was still pending and claimed there is a balance of $300 due as attorney's fee.

(2) Item for $125 for a cause of action filed in the Superior Court of Maricopa County, entitled Niagara Fire Insurance Company v. Wallapai Brick Company marked "still pending."

(3) Item for $125 for a case in the same court, entitled Goldwaters' Mercantile Company v. Jack C. Davey.

(4) Item for $50 for services rendered for an action in said court entitled Davey v. Ackers, marked "still pending."

(5) Item for $50 in an action in said court entitled Davey v. Wheat marked "still pending."

(6) Item for services for conference with deceased in the sum of $25, in July and August, 1938.

(7) And the last item was for writing the minute entries of the Wallapai Brick Company and acting as statutory agent to 1940 at $25 per year from 1932, the item being for $125.

The appellant further contends: (1) That the claim as presented was not the same claim upon which suit was brought. (2) That in reference to items of the claim numbered 1, 2 and 7 the claim is based upon a promise of deceased to pay the debt of the Wallapai Brick Company and is not in writing, therefore appellant invokes the defense of the statute of frauds. (3) Appellant pleads the statute of limitation as to items 4 and 5 in the claim as allowed by the trial court and as above set forth. (4) Appellant claims the item for services as statutory agent of the Wallapai Brick Company is barred by the statute of limitation. (5) Error is complained of by the trial court allowing appellee to testify to his agreement with deceased during his lifetime. (6) That the appellee failed to prove a primafacie case as to any one of the above named items.

In reference to the contention that this action was brought on grounds not set forth in the creditor's claim, or in other words, that the special oral agreement plead in the amended complaint was not made known to appellant through the claim presented, appellant cites many cases, among them being, Estate ofSullenberger, 1887, 72 Cal. 549, 14 P. 513; Lichtenberg v.McGlynn, 1894, 105 Cal. 45, 38 P. 541; Barthe v. Rogers,1899, 127 Cal. 52, 59 P. 310; McGrath v. Carroll, 1895,110 Cal. 79, 42 P. 466; Etchas v. Orena, 1900, 127 Cal. 588, 60 P. 45; Brooks v. Lawson, 1902, 136 Cal. 10,68 P. 97; Morehouse v. Morehouse, 1903, 140 Cal. 88, 73 P. 738.

As set forth in our case, In re Nolan's Estate, 56 Ariz. 366,108 P.2d 391, 394, our court said, as it often has, that: "Our probate law is taken from California and we have frequently followed the courts of that state in its construction. . . ."

From the case of Syler v. Katzer, 12 Cal. 2d 348,84 P.2d 137, 119 A.L.R. 422, we quote:

"The contention is then, that the claim was insufficient in form, and reliance is placed on such cases as Etchas v.Orena, 127 Cal. 588, 60 P. 45, and Estate of Steuer,77 Cal. App. 584, 247 P. 211. Without discussing these in detail, it may be said that there is no necessity that a creditor's claim be drafted with precision and completeness of a pleading. The only requirement is that it state such facts as will apprise the executor or administrator of the amount of the demand. SeeStandiford v. Cantrell, 87 Cal. App. 736, 262 P. 800;United States Gypsum Co. v. Shaffer, 7 Cal. 2d 454,60 P.2d 998. . . ."

A case very much in point and where the reasoning is sound isSellai v. Lemmon (Nev.), 151 P.2d 95, 96, from which we quote:

"But defendant contends that the cause of action for the balance claimed to be due on the contract, is different from the claim filed in the estate proceedings. A number of authorities are presented in the brief in support of this contention. We have examined them and have no quarrel with them. They simply do not fit the case at bar. They go to the well-established rule that a suit cannot be maintained upon a claim required to be filed in probate unless it has been so filed within the time prescribed by statute. But here there has been a claim duly filed and rejected, and on which the action is brought. The contention that there is a material difference between the claim and the cause of action set out in the amended complaint, is due to a mistaken notion that the former must be detailed with the same particularity required in pleading a cause of action upon it. The law is based upon reason and it would be unreasonable to require a claimant to seek the services of an attorney in preparing a claim against an estate with the attendant inconvenience and expense, or take the risk of losing a just claim. A claim need not stand the test of a pleading. Kirman v. Powning, 25 Nev. 378, 60 P. 834, 837, 61 P. 1090."

[2] From the cases we have read we feel that the claim as presented by the appellee was sufficient because the details were covered in the amended complaint.

[3] The theory presented in the next contention is that Janson cannot recover upon his 1, 2 and 7 items for which he received his judgment from the trial court because he failed to prove any agreement or memorandum thereof in writing signed by decedent as required by Sec. 58-101, Arizona Code Annotated 1939, having reference to the statutes of fraud.

Appellant cites the case of Richardson Press v. Albright,224 N.Y. 497, 121 N.E. 362, 8 A.L.R. 1195. In this case the defendant in the action agreed with the plaintiff that he would pay $1,500 in three equal parts. Prior to that agreement the defendant had answered a letter from the plaintiff in reference to the obligation that the company that owed plaintiff, that he, the defendant, had nothing to do with the direct management of the company; that he expects to be the manager and he would be glad to make arrangements for the payment of the amount due and for future services. In the instant case, according to testimony which the trial court evidently took into consideration as to the items allowed, the appellee herein was employed personally to represent the deceased Davey, and the trial court properly allowed the items. We do not think that this comes within the statutes of fraud.

[4] By the next contention appellant raises the question of statute of limitations as to items 4 and 5, supra, as allowed by the trial court. These two cases were filed in 1935, but in each instance after entering default the appellee took no further action. Both of the actions were marked in the creditor's claim "still pending." The action herein was filed in the Superior Court in July, 1941. Also item No. 3 hereinbefore mentioned, known as the "Goldwater claim" and allowed by the trial court, was no doubt allowed on the evidence of the appellee wherein he, in part, testified: "Anyhow, he never responded and the case just wore itself out. I have a stipulation to dismiss it." Most all of these items that have been allowed by the trial court were marked "still pending" except the Goldwater claim just mentioned, and the last item for serving as statutory agent, which, itself, would indicate that it is still pending, and the trial court in respect to the aggregate amount of these claims of $800, stated, "The court is of the opinion that the statute of limitations begins to run as to each of the separate items except the last item mentioned in the claim, when the respective suits were terminated and the respective services completed." We take the foregoing from the memorandum opinion by the trial court which in a way serves as the findings of fact.

[5] Also it is claimed that the trial court should not have allowed the appellee to testify to the special conditional oral agreements alleged in the complaint and that it was in violation of Sec. 23-105, Arizona Code Annotated 1939, which reads as follows:

"Limitations to testimony in actions by or against personalrepresentatives. — In an action by or against executors, administrators or guardians, in which judgment may be rendered, for or against them as such, neither party shall be allowed to testify against the other as to any transaction with or statement by the testator, intestate or ward unless called to testify thereto by the opposite party or required to testify thereto by the court, and the provisions of this section shall extend to and include all actions by or against the heirs, devisees and legatees or legal representatives of a decedent arising out of any transaction with such decedent."

Appellant timely objected to the testimony given by the appellee, but the court practically throughout the trial of the case overruled the objections, so evidently the court in its discretion overruled the objections and had a right to do it under the above quoted section. And it was equivalent to requiring the appellee to testify as held in our case ofCostello v. Gleeson, 15 Ariz. 280, 138 P. 544.

This contention of the appellant is one of the most important of those raised, but we see no abuse of the discretion of the court in allowing the evidence of the appellee.

In respect to the cross-complaint, being unable to uphold the theory of the cross-appellant as to the existence of the agreement between Janson and Davey that the time of payment of his claims would be upon the liquidation of the Fitzsimmons mortgage of May 9, 1939, we cannot find for the cross-appellant, as we hold the findings set forth in the memorandum opinion of the trial court relative to statute of limitations apply as to the items of the cross-complaint.

The judgment of the lower court is accordingly affirmed.