No. 13811 IN THE SUPREME COURT OF THE STATE OF MONTANA 1977

EDDIEA. ZIEGLER and KATHRYN ZIEGLER, Plaintiff and Appellant,

-vsSTEPHENA. KRAMER et al., Defendant and Respondent.

Appeal from: District Court of the Thirteenth Judicial District,

,. Honorable C. B. Sande, Judgepresiding. Counsel of Record: For Appellant: Joseph P. Hennessey argued, Billings,Montana For Respondent: Hibbs, Sweeney and Colberg, Billings,Montana Maurice R. Colberg,Jr. argued, Billings,Montana

Submitted: December 6,1977 Decided: 

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## 727Mr. Chief Justice Paul G. Hatfield delivered the Opinion of the Court. Plaintiffsappeal from an order of the DistrictCourt, Yellowstone County,denying plaintiffs' motion to file an amended and supplemental complaint and granting defendant's motion for summary judgment. On April 8, 1976,defendant and respondent,personal representative of the estate of Rita G. Klein, published a first "notice to creditors" of the decedent's estate,pursuant to section 91A-3-803,R.C.M. 1947. Plaintiffs filed a creditors' claim againstdecedent's estate, alleging that the estate was indebted to plaintiffs in an undetermined amount for services rendered to decedent, and that this claimwas secured by a writing, signed by the decedent, which said that decedent gave plaintiffs "ALLMONIES ON DEPOSITAT THE FIRSTNATIONAL BANK AND TRUST COMPANY,BILLINGS, MONTANA." Defendant,personal representative, rejected the claim and plaintiffs then filed an action in District Court, Yellowstone County, on the same contract theory that they had set forth in their creditors' claim. Defendant submitted a motion to dismiss, which was denied by the DistrictCourt. Defendant then filed his answer, and based

onplaintiffs' testimony in depositions,moved for summary judgment. In the depositions, plaintiffs admitted that the services

onwhich they based their claimwere neighborly serviceswhich they had performed for the decedent without any expectation of payment. Defendant supported hismotion for summary judgment with a brief in which he cited authorities for the proposition that 

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## * * * when services are renderedwithout expectation of compensation on the part of the one rendering the service

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no contract is implied." Plaintiffs thereafter filed a motion to amend and add supplemental complaint,pursuant to Rule 15(a) and (d),M.R.civ.P.In their proposed supplemental complaint,plaintiffs sought to add a theory of recovery under gift causamortis to their contract theory. In support of their gift causamortis claim, plaintiffs submitted, as an exhibit, the same document, signed by decedent, which had supported their contract claim. Defendant filed a brief in opposition to plaintiffs1motion to amend and supplementtheir complaint,asserting that therewas no claim of gift in either the claim against the estate or the original District Court complaint. Defendant asserted that the complaintbased on gift causamortis was therefore barred by the statute of limitations in section 91~-3-$$08, R.C.M. 1947, because itwas a new claimwhich was not filed within four months of the firstnotice to creditors of decedent's estate. The first notice to creditorswas published onApril 8, 1976; the proposed amended and supplemental complaintwas filed on February 23, 1977. District Judge Charles Luedke denied plaintiffs1motion to file an amended and supplemental complaint and granted defendant'smotion for summary judgment. The issues raised by plaintiffs in this appeal are: 1. Did the district judge abuse his discretion in denying plaintiffs'motion to submitan amended and supplemental complaint? 2. Did the district judge abuse his discretion in granting defendant's motion for summary judgment? We shall discuss these issues in reverse order. Our inquiry as to the propriety of the summary judgment order focuses on whether l' 

## * * * the pleadings,depositi~ns 

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## * * and admissions on file

## * * * show that there is no genuine issue

as to any material fact and that the moving party is entitled to judgment as a matter of law. 

## * * *v Rule 56(c), M.R.Civ.P. InMontana, by statute, filing a creditor's claimwiththe estatewithin four months of the firstpublication of notice to creditors is a prerequisite to bringing an action on the claim in District Court. Section 91A-3-803, R.C.M. 1947. In this case, the only claim which plaintiff filed on the estate within the fourmonth statute of limitationswas based on a contract theory "That said estate is indebted to (appellants) 

## * * * for servicesrendered over a period of nine years. 

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## * *" In depositions,plaintiffs stated that the services rendered to decedent upon which they based their claim, included heavy work, shoveling sidewalks, trimming hedges, taking decedent to the stores for shopping, and helping decedentwith her screens and storm windows. Plaintiffs, in their depositions, admitted that they had performed the services for decedent with no expectation of payment; rather,plaintiffs indicated that they performed the services out of kindness for an elderly neighbor. However laudableplaintiffs' actions on behalf of decedentmay have been, there was no implied contract of payment since there was no understanding between plaintiffs and decedent that plaintiffs would receivepayment as consideration for the services they performed. In denying a plaintiffs' contract claim against an estate for services rendered to a decedent, the California Court ofAppeals stated: 

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## * * * If at the time the services were originally rendered they were intended to be gratuitous or as an accomodation, motivated by friendship, kindness,or some other significant relationship existing between the parties, and were tendered without any expectation of remuneration, they cannot afterwardsbe converted into an obligation to pay their reasonable value under the theory of an implied contract. 

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## * *" Payne

### v. Bank of America National Trust and SavingsAssn. (1954)) 128Cal.App.2d 295, 275 P.2d 128, 134. See also, Kershawv. Tracy Collins Bank and Trust Co. (1977) Utah 2d 

## , 561 P.2d 683, 685; 54A.L.R. 548. Because in this case therewas, as amatter of law,no implied contract for payment, summary judgment

was properly granted on the contract claim. Nor did the district judge abuse his discretion in denying appellants'motion to amend and supplementtheir District Court complaint to include a gift theory of recovery. The fourmonth statute of limitations in section 91A-3-803was enacted to expedite the closing of decedents' estates. The claim sued upon in District Courtmust be within the scope of the claim presented to the executor. 

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## * * * The plaintiff may not prove a cause of action entirely other than or different from that stated in his claim, and clearly cannot recover upon evidence showing an entirely different claim. As the Montana court [inBrown v. Daly (1906), 33 Mont. 523, 84 P. 8831 tersely remarks regarding the claim upon which an action may be maintained: 'What claim? It goes without saying that it is the identical claimwhich was presented; otherwise the lawwould be a dead letter.

### "' Banc.Prob.Prac.2d S901. Here the claim sued upon (gift) is notwithin the scope of the claim (contract) presented to the executor. See Brown v. Midland Nat. Bank (1967), 150Mont. 422, 435 P.2d 878 (claimin debtmaterially different from court action based on oral contract to bequeath); Brion v. Brown (1959),135Mont. 356, 340 P.2d 539 (claimin quantummeruitmaterially different from court action based on contract to deed or devise real property). Plaintiffsmaintain that under Rule 15(a), M.R.Civ.P., the judgewas required to allow them to amend their complaint so

as to include a gift theory of recovery. Rule 15(a) provides that, after a defendant has served his answer, a plaintiff may amend his complaintby leave of court, 

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## * and leave shall be freely given when justice so requires. 

## * * *" Plaintiffsnote that the fact that a proposed amendment of the complaintwould change the legal theory upon which the action is brought is not in itself a valid reason for denying a motion to amend. PrenticeLumber Co. v. Hukill (1972), 161Mont. 8, 504 P.2d 277. While we agree with plaintiffs that the purpose of Rule 15(a), M.R.Civ.P., is to encourage the resolution of cases on the merits by freely allowing amendment of complaints "when justice so requires",we do not believe that that is in issue in this case. It is irrelevant whether plaintiffs bring a District Court claim based on the contract theory of their original complaintor on the gift theory in their proposed amended complaint; the legal theory of their District Court complaint cannot alter the fact that the only claimwhich plaintiffs timely filed with the personal representative against the decedent's estate was a contract claim. A District Court complaint against the personal representativebased in contract is within the scope of the creditor's claim filed against the estate but, for the previously discussed reasons, fails as a matter of law. A complaintbrought on a gift theory fails because it is a material variance from the contract claimbrought against the estate. The order of the District Court denying plaintiff's motion to submit an amended and supplemental complaintand granting defendant's motion for summary judgment is affirmed. 

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Chief Justice 

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We concur:



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