Citations
- 58 Cal. App. 2d 318
Full opinion text
NOURSE, P. J.
The plaintiff sued upon an implied contract to pay for the reasonable value of services alleged to have been performed for the decedent David Ferrari under an alleged oral contract to leave the plaintiff one-half of the estate. The cause was tried with a jury upon an amended and supplemental complaint based upon an amended claim filed and rejected; plaintiff had a verdict for $20,000, which was approximately one-half of the appraised value of the estate; on motion for a new trial the trial court reduced the judgment to $12,500. The jury returned its verdict “in favor of Plaintiff Louis Ferrari and against Defendant Palmira Mambretti, as Administratrix of the Estate of David Ferrari, Deceased. ...” The judgment on the verdict was in the same form. The defendant appeals from the reduced judgment upon typewritten transcripts.
The action rests upon an alleged oral contract made in 1921 when deceased was thirty-six years of age and plaintiff sixteen. Plaintiff was a second cousin of deceased. He had not attended school regularly, but had taken some work in the night schools. In 1921 he had a full time job with Levi Strauss & Company “packing and piling the goods.” At that time Louis was living with his father, mother and a sister. David was living with the family. His father, mother, four brothers and two sisters were then living. David purchased the premises at 2599 San Bruno Avenue, San Francisco, in 1921 where he opened a general grocery store which was conducted by himself with the help of plaintiff’s sister. He lived and ate his meals in a portion of the building set aside for that purpose. At this time he approached the parents of the plaintiff and requested that the boy be permitted to come and live with him and help in the grocery store in the evenings after his regular work and on Sundays. It appears in the testimony of plaintiff’s witnesses that deceased then promised that he would compensate plaintiff by leaving him one-half of his estate.
Though this contract is unenforcible because not in writing (Section 1624, sub. 6 of the Civil Code) the terms of the original agreement of the parties are of importance in determining the rights of plaintiff to recover compensation under his plea of quantum meruit. The plaintiff endeavored to prove the contract by calling as witnesses his mother and sister who stated that they were present when the agreement was made. The testimony of these witnesses detailing the conversation is the evidence of the contract. The sister testified that David spoke of the good position Louis had with Levi Strauss and said: “. . . he thought that Louis, with his business possibilities would be a great help to him in all business affairs. ‘As you know, I have no education, I don’t read or write English, and this grocery business which I am going in is entirely new to me, which Louis and I have been talking about.’
“He then said to Louis, ‘Louis, if you will come in and live with me, and help me in the store on Saturday afternoons and holidays and Sundays and nights when you are through with your work where you are now employed, and help me in my business affairs, with things that may occur from time to time, I will compensate you at the time of my death by leaving you half of my estate. ’
“Louis said he wanted to go