Sappa v. Crestetto ( 1947 )

DESMOND, P. J.

Plaintiff sued upon a rejected claim against the estate of Giuseppe Crestetto, who died on December 13, 1943, and obtained verdict and judgment for the. amount of the claim. Defendant appeals. The demand, as stated in the claim, was for $5,000 as the “balance of account for nursing, personal care, attendance, companionship, board and lodging September 20, 1922 to December 10, 1943.”

It was alleged in the complaint, “That on or about the 20th day of September, 1922 the Plaintiff and said decedent, Giuseppe Crestetto, entered into an oral agreement and understanding whereby the Plaintiff agreed to render, perform and furnish certain constant and continuing personal work, labor and services consisting of furnishing board, lodging, personal care, attendance, companionship and nursing to, of and for the said decedent and that the said Giuseppe Crestetto would compensate the Plaintiff and pay therefor at the termination thereof, to wit: on or before the death of said decedent; that further is was by said parties agreed that said decedent would pay to Plaintiff some nominal amount periodically on account of said work, labor and services; and further in connection with the foregoing the Plaintiff alleges that during the entire period intervening between said 20th day of September, 1922 and said 10th day of December, 1943, she rendered, conferred and furnished said work, labor and services under the terms of said agreement and understanding ; that said work, labor and services were constant, continuous and uninterrupted during said period of time and that during all of said period of time the same were received, enjoyed and accepted by said decedent.” It was further alleged that Crestetto had paid upon account from $25 to $30 per month and that there was a balance due of $5,000. There was no allegation as to the amount agreed to be paid, nor as to the reasonable value of the services. A bill of particulars, furnished by plaintiff upon demand of appellant, is reproduced at pages 12 and 13 of respondent’s brief and shows in detail the various items which form the basis of the creditor’s claim.

The points on appeal are (1) that the complaint failed to state a cause of action; (2) that the claim was barred by the statute of limitations; (3) that an accord and satisfaction' set up in the answer was a bar; (4) insufficiency of the evidence to establish an agreement for additional compensation; (5) that the instructions were erroneous, and (6) that the verdict was excessive.

Under the first point it is argued that the agreement pleaded was void because it was not in writing and was not to be performed within a year from the making thereof and within the lifetime of the promisor. (Code Civ.Proc., § 1973; Civ. Code, § 1624.) The argument assumes that the action was based upon the oral agreement. This is not the case. It was not alleged that Crestetto agreed to pay any certain amount and, in the absence of an agreement as to the amount to be paid, there was no enforceable express contract. The cause of action was in quantum meruit. It was founded on the principle that where services are rendered for compensation, without a valid agreement as to price, there is-.an obligation to pay their reasonable value, and that if they are rendered continuously, without a valid agreement as to time of payment, there is an obligation to pay when they have been completed. The right of recovery under such an arrangement has been affirmed many times. (Wax v. Adair, 16 Cal.App.2d 393 [60 P.2d 904]; Turell v. Anderson, 16 Cal.App.2d 445 [60 P.2d 906]; Seib v. Mitchell, 10 Cal.App.2d 91 [52 P.2d 281]; Doolittle v. McConnell, 178 Cal. 697 [174 P. 305]. See, also, additional cases listed in Long v. Rumsey, 12 Cal.2d 334 at 342 [84 P.2d 146].) The purpose of alleging that Crestetto agreed to pay for the services was to show that they were not rendered gratuitously. An allegation that they were rendered at his special instance and request would have served the same purpose, since an obligation to paywould have been implied. The allegation that they were to be paid for “at the termination thereof, to wit: on or before the death of decedent,” served to show that they were not to be paid for as they were rendered. It was the same as if it had been alleged that no time was agreed upon when payment would be made, since the presumption then would be that payment for the continuous and uninterrupted services became due when they were terminated. The pleading of the agreement merely served the purpose of enabling plaintiff to offer proof of conditions under which she would be entitled to recover the reasonable value of her services, at the time they were completed, and was not relied upon as the basis of defendant’s liability.

There is no merit in the plea of the statute of limitations. No cause of action arose until the services were terminated by the death of Crestetto.

■ Under the point of insufficiency of the evidence, it is contended that there was no evidence of any agreement between the parties under which Mrs. Sappa was to render services, and no evidence as to the value of the board, lodging and services rendered. Such evidence as there was of an agreement is to be found in the testimony of the witnesses, other than Mrs. Sappa, who was incompetent to testify as to the terms of any agreement, and in the circumstances under which Crestetto lived in Mrs. Sappa’s home as a boarder. He came from San Francisco and took up his home with Mr. and Mrs. Sappa in 1922. The Sappas were subsequently divorced and Crestetto continued to room and board with Mrs. Sappa. Both were steadily employed, Crestetto in a terra cotta factory and Mrs. Sappa in an overall factory. Crestetto paid Mrs. Sappa $25 per month, at first, and gradually increased it to $30. He owned several houses and was frugal and prosperous. He not only received board and lodging, but also the domestic services of Mrs. Sappa which usually go with home life. She laundered and mended his clothes, nursed him through various illnesses and accidental injuries, she was his constant companion, a good housekeeper, a devoted friend, and he had complete confidence in her. She occasionally attended to his banking, collected some of his rents, performed manual labor in his several houses, and at times carried his real property in her name. He expressed himself as happy and satisfied in the home she provided for him and spoke of her to their friends as a good and faithful woman and friend. For 21 years he lived this peaceful and contented life and had no other home. The arrangement which he had for Mrs. Sappa’s compensation appears to have been the subject of frequent discussion with his friends. Teresa Benedetto had been his friend since their childhood in Italy. Crestetto had been a boarder with the Benedetto family in Alameda for 13 years. Mrs. Benedetto came to Los Angeles in 1921, and Crestetto brought Mrs. Sappa to her house in 1922. A month or two later Crestetto told her ‘ ‘he was paying $25.00 a month and then if he died or moved away he would give her the rest.” She testified, “I told him, ‘you don’t pay enough’ and he said, ‘Well, ! don’t pay right away; if I move or would pass away I pay the rest.” Throughout the testimony of this witness many such conversations with Crestetto were related and he made many statements such as, “I am going to pay when I go away, or in the end”; “if I don’t pay it now I pay it afterwards.” He also said repeatedly that he would leave Mrs. Sappa money so that “she don’t have to worry for her life.” Statements to the effect that he would pay more and at some later time were made to Mrs. Benedetto “50 or 100 times” and upon many occasions in the- presence of Mrs. Sappa, who would say only that she was satisfied. Mrs. Hodgson testified that he said, “She always did a lot for him, that when he passed away or when he went away from that home he would always see she was left enough so she would never have to go out and work.” Crestetto spoke in the highest terms of Mrs. Sappa to his niece, Mary Vironda, and said that if anything happened to her he would take care of her. William Benedetto testified to similar statements made by Crestetto when the witness’ mother questioned him as to what he was going to do about Mrs. Sappa.

The jury concluded, from the circumstances of the parties and the declarations of Crestetto, that he had agreed with Mrs. Sappa that he would pay her further remuneration when her services were terminated and that she rendered the services in reliance upon his agreement; also that the services for the period September 20, 1922, to December 10, 1943, were worth $5,000 more than had been paid on account. Such findings are implicit in the verdict, but we cannot accept the view that the period of reckoning, twenty-one years, was correct; for the reason that a settlement was reached between Mrs. Sappa and Mr. Crestetto which barred any recovery for the period preceding January, 1940. This appears from a document, the genuineness and due execution of which were admitted by the plaintiff in the pleadings and orally before the court. It is signed on one side by Mrs. Sappa and on the other by Crestetto and was introduced in evidence at the trial. It reads as follows:

“I, undersigned, declare that during the past 15 years I have received from Giuseppe (Joseph) Crestetto the amount of 28 to 30 dollars monthly for house rent, etc. therefore I declare that as today I am fully satisfied and I am not expecting any other compensation from G. Crestetto.

“This writing serves as a receipt.

“Los Angeles, California, January 1940.

“Caterina Sappa”

and on the reverse side,

“This receipt does not deprive Mrs. Caterina Sappa of the right to receive $500—after I am passed away—as provided in Testament dated December 25, 1937.

“Giuseppe Crestetto fu Domenico

“(Joseph Crestetto son of the late Domenic).”

Why this instrument was signed in January, 1940, is unknown. It may have been signed at the time in 1940 when, according to the testimony, he was very sick and as the result of arguments concerning the sufficiency or inadequacy of the payments made by Crestetto for the period beginning in 1925, fifteen years preceding its date, or possibly Crestetto believed that he was entitled to the “receipt” in consideration of his having made provision in his will for Mrs. Sappa, or perhaps an additional cash payment was made at the time. .It appears from the document that the writing on the face thereof was made by the hand of the person who signed it, Caterina Sappa. If that is so she is not permitted to impugn it or to avoid responsibility upon a claimed ambiguity. Any such claim should be resolved against her. Furthermore, since it does not appear that she made any objection concerning the document during the period of approximately four years after she delivered it to Mr. Crestetto and prior to his death, and since it is to be presumed that he relied upon or acquiesced in her declarations therein (Code Civ. Proc., § 1963, subd. 27), she should not be permitted after his death, in litigating her cl aim against his estate, to falsify her declarations in the document. Under section 1962 of the Code of Civil Procedure, wherein conclusive presumptions are specified, it is provided in subdivision 3 thereof: “Whenever a party has, by his own declaration, act, or omission, intentionally and deliberately led another to believe a particular thing true, and to act upon such belief, he cannot, in any litigation arising out of such declaration, act, or omission, be permitted to falsify it.” The holographic will, with its English translation, was introduced in evidence and imposed upon Grestetto’s four brothers the obligation to pay to his two sisters the sum of $1,000 each. It further provided that “I desire that in the same way that the sisters are paid, that likewise be paid $500 five hundred dollars to my landlady, Caterina Sappa (Catherine Sappa) as a recompense for the many years I lived in her house as a boarder. ” Whatever may have been the reason for preparing the document signed by both parties it constituted an acquittance of any liability on the part of Grestetto for “house rent, etc.” as of the date Mrs. Sappa signed it. (See Civ. Code, §§ 1523, .1541.) If any question arises as to what is meant by “house rent, etc.” the answer is furnished by reference to the first item of the bill of particulars, reading as follows: “For personal care, attention, contentment, comfort, entertainment, affection, nursing, ailment [aliment], lodging and companionship, from September 20, 1922 to December 10, 1943.” Whether the language, “I am not expecting any other compensation from G. Grestetto” bars Mrs. Sappa from collecting from January, 1940 to December 10, 1943, which was three days before the death of Mr. Grestetto, is a question to be decided upon a new trial if one is had.

It is unnecessary, in view of our decision upon the points discussed, to consider other objections raised by appellant.

The judgment is reversed. The purported appeal from the order denying defendant’s motion for a new trial is dismissed.

Wood, J., concurred.