On Petition for Rehearing.
(165 Pac. 1173.)
Messrs. Neuner & Wimberly, for the petition.
Mr. John T. Long, Mr. Henry T. Bagley and Mr. Arthur Langguth, contra.
Department 2.
Mr. Justice McCamantdelivered the opinion of the court.
Appellant’s petition for rehearing reargues the matters determined in the former opinion and presents with much force a question which was passed upon by us only inferentially. The claim presented to the administratrix does not set out the agreement testified to by plaintiff to the effect that she was not to be paid for her services until five years after she entered the office of the deceased. It is contended that the failure to mention this agreement in the claim, precludes its assertion by plaintiff in this action. It has been held that if the claim presented shows on its face that claimant has no cause of action, the claim cannot be the basis of a successful litigation with the executor: Wilkes v. Cornelius, 21 Or. 348, 352 (28 Pac. 135); McGrath v. Carroll, 110 Cal. 79 (42 Pac. 466, *85468). The action at law must he based on the same claim as that presented to the personal representatives of the deceased: Wilkes v. Cornelius and McGrath v. Carroll, supra, Etchas v. Orena, 127 Cal. 588 (60 Pac. 45). Within the rule announced by these authorities we think that plaintiff’s claim presented to the administratrix is sufficient to sustain the judgment she has recovered. It was held by this court in Wilkes v. Cornelius, 21 Or. 348, 350, 351 (28 Pac. 135), that:
“The facts constituting the claim need not be stated with the same particularity required in a pleading in an action at law, but may be asserted in general terms; and however informal the claim may be, if it show a substantial liability in favor of the claimant and against the estate, it will be sufficient.”
The claim demands the same sum as that for which this action is brought. Like this action it is based on a quantum meruit for services rendered and the services are specified in the claim as they are specified in the verified statement of plaintiff’s account furnished the defendant on demand. The claim does not appear to be barred by the statute of limitations; on the contrary, nearly all the services rendered are alleged to have been performed within six years prior to the death of defendant’s decedent. It was not necessary for plaintiff to set up in her claim the evidence on which she relied to support it. The former opinion is adhered to and the petition for a rehearing is denied. Rehearing Denied.
Mr. Chief Justice McBride, Mr. Justice Moore and Mr. Justice Bean concur.