Lauritsen

Plaintiff sued upon a rejected claim presented against the estate of the above-named decedent as follows:

The allegations of plaintiff’s complaint followed closely the wording of the claim. The trial was by jury resulting in a verdict for plaintiff. Defendants’ motion for a directed verdict having been denied, after the verdict was rendered, defendants moved for judgment notwithstanding the verdict under Code of Civil Procedure, section 629. This motion was granted upon the ground of variance between the claim and the proof and judgment was entered for defendants. The trial court held that inasmuch as the claim was for reasonable value of services and supplies rendered the deceased and the proof was that the services were performed in expectation of and in return for the promise of a legacy, this constituted a fatal variance between claim and proof under the authority of Etchas v. Orena, 127 Cal. 588 [ 60 Pac. 45 ].

Plaintiff appeals from the judgment so entered. He distinguishes the instant case from Etchas v. Orena, supra, upon the ground that here the claim alleged a continuing promise to compensate at death; that such continuing promise served mainly to avoid the statute of…