Jack C. Davey died in Maricopa County, Arizona, on November 24, 1940. Plaintiff brought this action against his personal representative 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 only witness to testify as to the services sued for, and the contract under which they were rendered, is plaintiff. The client being dead, his lips are closed. The survivor is the only living witness, and upon his testimony alone the judgment against the estate rests.
Under section 23-105, Arizona Code Annotated 1939, plaintiff was incompetent to testify as to any statement or transaction with the deceased unless called by the executrix or required to testify thereto by the court. The plaintiff was not called as a witness by the executrix nor by the court. He offered himself, and over the objections of the defendant that the testimony was incompetent was permitted to testify. If the ruling was equivalent to "requiring" the plaintiff to testify, still I say it was an abuse of a sound discretion, which is the discretion the judge may exercise.
Discussing a statute of the same meaning as our section 23-105,supra, the Supreme Court of Montana, in Wunderlich v. Holt,86 Mont. 260, 283 P. 423, 425, said:
"While the power to admit or reject such testimony rests in the discretion of the trial court, it should be admitted only when, under all the facts and circumstances, it appears to the court that injustice will be done if the testimony is excluded. As was pertinently stated by Mr. Chief Justice Callaway, speaking for the court in Marcellus v. Wright, 65 Mont. 580, *Page 50 212 P. 299, 302: `When should a court determine to admit the testimony of the survivor against one whose "mouth is stopt with dust"? Manifestly only when it appears to the court that, in view of all the surrounding facts and circumstances, injustice will result if the testimony is excluded. While undoubtedly the power to admit and reject such testimony is reposed wisely in the sound discretion of the trial court, it cannot be too careful in exercising that discretion. Every judge has observed the freedom with which a witness testifies who knows he cannot be contradicted. Courts should scrutinize with more than usual care the quality of proof presented in such cases, and when the testimony relates to oral communications between the witness and the deceased, it must be viewed with caution.'"
If there were any evidence corroborating that of plaintiff, there would be some reason for allowing him to testify.
The claim as presented to the administratrix for allowance covers a period of seven years, lacking one month and a few days, and is for legal services rendered Davey as an individual and for legal services rendered the Wallapai Brick Company, a separate entity. The claim does not show why Davey's estate should pay the Brick Company's debts. It shows most of the work was for the Brick Company, a going concern, and the charges for such work were against Davey, or his estate, without any explanation. The claim as presented to the administratrix for allowance is in the form of an open account, and most of the items thereof are identified as accruing from time to time in actions either prosecuted or defended in the superior court of Maricopa County, in which the Brick Company or Davey was a party.
The items allowed, according to the majority opinions, were the following:
In the Beck v. Wallapai Brick Company case, the account recites "upon the successful conclusion of this *Page 51 case, the Wallapai Brick Company obligates itself to pay $500 as attorney fees; paid on account July, 1929, $200; balance $300." This item accrued in 1929, and was of course outlawed by the three-year statute long before the action was brought. Sec. 29-203, Arizona Code Annotated 1939.
Niagara Fire Ins. Co. v. Wallapai Brick Company case was dismissed with prejudice March 19, 1930, and on that date the Brick Company was charged with a fee of $125. Clearly that was also outlawed. Id.
Goldwaters Merc. Co. v. Davey was dismissed, according to the creditor's account, on December 15, 1933, and on that date Davey was charged with a fee of $125, which was clearly outlawed. Id.
The Davey v. Akers case, an item of $50 attorney fee accrued, according to the creditor's account, August 16, 1935, more than three years before the claim was presented for payment. Id.
The item of $50 in the Davey v. Wheat case accrued, according to creditor's account, December 20, 1935. Id.
The item for writing minutes of the Brick Company and acting as statutory agent from 1932 to 1940, at $25 per year, "$125" extends over a period of eight years. Most of it of course was barred by statute of limitations when presented for payment.
It will be noticed the court, in its opinion, names the cases in which plaintiff's claim for fee was allowed, but in none of such cases, except No. 6, is the date when services were supposed to have been rendered given. The court does take notice that the drafter of the account appended to three of the items the legend "still pending," but there was no evidence that they were pending or should be pending.
It is too apparent that the plaintiff abandoned any idea of collecting on the creditor's claim as presented to the administratrix, and therefore brought his action *Page 52 upon the special agreements alleged in his complaint.
Plaintiff's complaint set out such account in haec verba, showing charges and credits and then alleges as follows:
"That thereafter, and on or about November 7, 1934, on or about April 1, 1935, on or about April 23, 1936, and on or about July 30, 1938, in consideration of a special agreement whereby the plaintiff deferred suit upon the various items of said claim, the decedent, Jack C. Davey, promised to the plaintiff that he would pay such indebtedness as soon as he, Jack C. Davey, was able, and that he, the said Jack C. Davey, would be able to pay for said services when he had acquired and fully paid for the interest of Dorothy J. Fitzsimmons in the Wallapai Brick Company, a corporation, . . .; it was further stipulated and agreed between the parties that no item of said account would become due and payable until such time as all pending business should be concluded between Harold J. Janson, the plaintiff, and Jack C. Davey, deceased."
According to an allegation of plaintiff's complaint the Fitzsimmons account was liquidated and paid off on or about May 9, 1939.
The law positively requires one having a claim against an estate of a deceased person to present the same to the personal representative made out with "necessary vouchers" for allowance before any action may be maintained thereon against the administratrix. The claim here presented for allowance, without the aid of the allegations of the complaint, was nothing but an assemblage of figures and words, but when considered in connection with the allegation just stated may well be regarded as a consideration for the "special agreements" pleaded by plaintiff, in which he states he deferred action on the promise by decedent that "he would pay such indebtedness as *Page 53 soon as he was able," or when he acquired the Fitzsimmons interest in the Wallapai Brick Company. In other words, the mutual agreement pleaded by plaintiff in his complaint was in lieu of the creditor's account and unassailable by either party to it, except for fraud or mistake. The agreement pleaded was not presented to the administratrix for allowance.
There may be some difference of opinion among the courts as to what a creditor's claim should state. Syler v. Katzer,12 Cal. 2d 348, 84 P.2d 137, 119 A.L.R. 422. But there is none that allows a creditor to maintain an action on his claim before it is presented for allowance and rejected by the personal representative or by operation of law, where the law makes such presentation necessary.
". . . Neither the court nor the administratrix can waive the statutory requirements by permitting the filing of a claim after it has become barred for failure to present it, nor an amendment of a claim presented after the lapse of the statutory time for presenting claims by setting up a contract different from the one on which it was originally based. It would amount to giving recognition to the filing of a new claim after time, which cannot be allowed under the circumstances presented in this case. The administratrix has no power to waive these mandatory provisions of the statute, nor may the court authorize her to do so. (Citing case.) A condition precedent to recovery on a claim presented to the administratrix, and by her rejected, is that it must be based on the claim as presented, and cannot give support to any other cause of action. (Citing cases.) To permit the plaintiff to come in with another amendment of its claim with a different contract after the lapse of the statutory period is, in our opinion, beyond the jurisdiction of the court." State ex rel. ParamountPublix Corp. v. District Court of Seventh Judicial Dist. etc.,90 Mont. 281, 1 P.2d 335, 337, 76 A.L.R. 1371. *Page 54
And in Stockton Sav. Bank v. McCown, 170 Cal. 600,150 P. 985, 987, the court said:
"The administrator had the right to reject the claim as presented. Thereupon the claimant's cause of action arose upon the claim in the form in which it had been presented. That was the only action which he might maintain. There was here a fatal variance between the claim presented and the claim upon which suit was brought. (Citing case)."
A good reason why plaintiff should not recover is that his claim against the estate, as filed and rejected, did not disclose that it was based upon special agreements acknowledging its justness and that it was owing, but on an open account. If the decedent, as contended in plaintiff's complaint, made such agreements and the claim against the estate so showed, then the administratrix would have been given an opportunity to investigate the claim, and if she found her intestate in fact had made the special promises alleged in the complaint she doubtless would have approved the claim and paid it in due course. But plaintiff's claim, as presented, did not inform the administratrix of such special agreements by her intestate, if any there were, and she had no opportunity to investigate the truth or falsity of such claim.
We observe that under the facts and the "special agreement" pleaded by plaintiff he could have brought his action against Davey on such agreement any time after May 9, 1939, and before Davey's death on November 24, 1940, a period of one year, six months and fifteen days. The reason for plaintiff's nonaction during that period to collect this overdue claim is not satisfactorily accounted for nor explained by plaintiff. There is no suggestion that Davey did not have or possess means to pay his debts while he lived, nor why he was not sued for this alleged debt when he could appear and defend in his own person *Page 55 and by attorney. This claim is not only pretty good evidence of his solvency during his lifetime, but also the solvency of his estate.
The judgment of the trial court should be reversed.