No. 31,257.

#### Vivian Laupheimer, *Appellant,*v. L. Jay Buck and Tracy Pritchard, as Executors of the Estate of William Laupheimer, *Appellees.*

(22 P. 2d 949.)

*936Opinion filed June 10, 1933.

*I. T. Richardson*and *Gilbert H. Frith,*both of Emporia, for the appellant.

*W. L. Huggins*and *Humbert Riddle,*both of Emporia, for the appellees.

The opinion of the court was delivered by

Hutchison, J.:

This is an action against the executors of an estate to recover on *quantum meruit*the reasonable value of services rendered the deceased in his lifetime. It was determined in the trial court upon the motion of the defendants for judgment in their favor upon the pleadings and the stipulated and admitted facts by the sustaining of said motion, and judgment was rendered for the defendants for costs, and plaintiff appeals.

The sole question involved was that of the bar of the one-year nonclaim statute, R. S. 1931 Supp. 22-702, and the one-year statute of limitations, R. S. 1931 Supp. "22-727.

The deceased, for whom the plaintiff claims to have rendered services at his request for nearly three years and for which he verbally promised compensation, died March 6, 1930. The defendants were duly and regularly appointed and qualified as executors on March 15, 1930. No formal claim was ever filed by the plaintiff in the probate court against the estate. This action was commenced in the district court of the county where the estate was being settled, on July 9, 1932, more than two years after the executors were appointed and qualified and had given notice of their appointment and qualification as such.

Appellant, however, relies upon the relation between this action and an intervening one between the same parties involving the recovery of compensation for the same services, in the form of specific real property, as per a verbal agreement before and during the time the services were being rendered by her, this intervening action having been commenced on October 24, 1930, less than eight months after the qualification of the executors. In this former action the'plaintiff failed to recover the real property prayed for, and judgment was rendered for defendants for costs. She appealed to this court, and here the judgment was affirmed, the decision being rendered June 4, 1932, and the case being entitled *Laupheimer v. Buck,*reported in 135 Kan. ,631, 11 P. 2d 721.

It is the theory of the appellant that the filing of the former ac*937tion within time fully satisfied the requirements of the nonclaim statutes and notified and informed the defendants of the plaintiff’s claim of a contract with the deceased and of her claim against the estate for compensation for the reasonable value of the services rendered by her. It is further contended that no further or additional notice was necessary for the same claim for compensation promised; that it is the same claim urged in both actions, only with different remedies, and that this action should on that account relate back to the filing of the former action.

The stipulation and pleadings show that the allegations of plaintiff’s petitions in the two actions are almost identical down to that of the promised compensation. In the former petition the alleged promise was certain real estate owned by the deceased, and in this action she claims to be entitled to recover for such services so rendered the fair and reasonable value of the same.

Appellant insists that by bringing the first action in time, she has fully complied with the requirements of R. S. 22-704, which is as follows:

> “All actions commenced against such executor or administrator after the death of the deceased shall be considered demands legally exhibited against such estate from the time of serving the original process on such executor or administrator.”

She further claims that the bringing of such action will take the place of filing a claim with the probate court, referring to decisions to that effect. Appellant cites *Clifton v. Meuser,*79 Kan. 655, 100 Pac. 645, where the claimant for similar services rendered the deceased, as in this case, served on the executor a notice of such claim only a few days before the expiration of the limitation and set the time for hearing on the last day within the limit. The hearing was continued so that the hearing was not had until the limitation had expired, and it was held that it was not necessary that the controversy be decided before the expiration of the period of limitation. Other cases are cited along the same line, but we do not think the propositions there determined exactly reach and control the situation here involved.

Appellant cites the case of *Hoover v. Hoover’s Estate,*104 Kan. 635,180 Pac. 275, where the executor was very tardy about qualifying as such and beyond the proper time filed his own claim against the estate, and it was held that as he was the sole executor and, of *938course, knew of his own claim, the statute of limitations did not apply, as the only purpose of the notice of claim was to inform the executor. Appellant reasons from this ruling that the first action fully informed the executors in the case at bar of the plaintiff’s claim against the estate. But the difficulty is not limited to the information furnished by the first action; it is in the difference of the causes of action or the kind of claims. The distinction between such claims is well pointed out in the syllabus of *Clifton v. Meuser,*88 Kan. 408, 129 Pac. 159.

> “Where one who has received money from another contends that it was given him under an express contract, in consideration of services which he afterwards performed, but is defeated in that contention in an action brought against him for the recovery of the money, he is not thereby precluded from maintaining an action upon an implied promise to pay the reasonable value of such services as he had rendered.” (Syl. See, also, *Faler v. Culver, 94 Kan.*123, 146 Pac. 333; and *Darnell v. Haines,*119 Kan. 633, 240 Pac. 583.)

In the case of *A. T. & S. F. Rid. Co. v. Schroeder,*56 Kan. 731, 44 Pac. 1093, an injured workman on the railroad commenced his action against the railroad to recover damages for personal injuries caused by the negligence of the company, and more than two years later aprended his petition to contain an additional cause of action concerning the same injury on account of the negligence of a fellow servant. The amendment was held to be a new cause of action and barred by the statute of limitations.

In *Railway Co. v. Bagley,*65 Kan. 188, 69 Pac. 189, a party commenced two suits upon a single cause of action, and it was held that where the one first determined stated no cause of action it will not arrest the running of the statute against an amendment made in either after the bar of the statute.

> “In an action for a commission a real-estate broker may join a count for the reasonable value of his services with a count based upon an express contract to pay a stated commission.” *(Berry v. Craig,*76 Kan. 345, syl., 91 Pac. 913.)

The claims of the plaintiff in the two actions here being considered are entirely different, although they might properly be included in the same petition, but recovery could only be obtained upon one. If both had been in the same petition and one of them was later amended, that cause would be barred regardless of the other being permitted to stand.

> “When a petition fails to state a cause of action, an amendment which as*939serts a cause of action barred by the statute of limitations does not relate back to the first petition so as to deprive defendant of the defense of the statute.” *(Powers v. Lumber Co.,*75 Kan. 687, syl. ¶ 1, 90 Pac. 254.)

The bar relates to the commencement of the cause of action with each separately, and as this action was not commenced until long after the bar of the statute had run, the ruling of the trial court was correct in not permitting it to be related back to the time of the commencement of the former action.

The judgment is affirmed.