Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1898-02-11
OPINION BY-BONNIFIELD, ].

The plaintiff duly filed with the Clerk
Of the District Court of the first judicial
district Of the State of Nevada, in and for
Drmsby County, his claim against the es-
ta.e Of said deceased. to-wit:
Estate of Mrs. William Mcdonald, de
ceased, to William Burgess. DR.. for wages
from February -, 1890 to April Is, 1897, as
a labOrer working for deceased upon and
about her home at the rate Of Sl2O0 per
month, Sl044. Credit by cash paid on ac-
count of wages during said period and for
clothes purchased by deceased and fur
nished claimant S245.W Oualancel $1,000"
The administrator rejected the claim,
renee this suit, The jury found for the
plaintiff in the sum of five hundred dol
lars. Judgment was given accordingly
with costs. The defendant appeals from
the judgment and from an order of the
"OUrt denying his motion for new trial.
It is alleged by the complaint substan-
tally, that the plaintiff worked, as a la
bOrer. IN the farm and in and about the
premises OF Mrs. William Mcdonald, de
ceased. at her request from February,
1880, 10 April, 1897; that the plaintiff filed
his claim on which this action is brought
against said estate for his said services
with the clerk OF said court; that the
same was presented by the clerk, TO the
defendant as such administrator, for al
lOwance, and by the defendant rejected;
that a copy of said claim as presented is
hereto attached and made a part of this
cOmplaint;'' that said services are reason
ably worth the sum of twelve dollars per
month; that no part of the same has been
paid except the sum Of S245.00, and that
there remains due and unpaid thereon to
the plaintiff the sum of $4,000.
The defendant demurred to the COM
plant on the grounds, that the court had
no jurisdiction of the subject matter, and
that the complaint does not state facts
sufficient to constitute a cause of action.
The Overruled the demurrer, to
which exception was taken, and the rul-
ing of the cOurt is assigned as error.
The particular grounds specified, ar
gued and urged by counsel in support of
the demurrer are: THAT the action herein
sought to be maintained is one upon a
qunntum meruit, while the claim filed and
presented to the defendant, as such ad-
ministratOr, for allowance or rejection
was founded upon an express contract.
THAT the complaint filed in said action
Is not founded or based upon the claim
which is alleged to have been presented
to defendant 4 =.
"Tha the claim upon which the cause
Of action set out in the complaint was
never filed Or presented to the defend
ant **."
The complaint shows that the action
was brought on the said claim which was
presented to inc rejected by the defend
ant. 1fthat claim is based upon an ex-
press contract between the plaintiff and
Mrs. Mcdonald, deceased, and TO recover
an agreed price for said services, then
this action is founded on that character
of claim, and not upon an implied con-
tract for the payment of wha. said SER
vices were reasonably worth. If the de-
PENDANT regarded the complaint as being
uncertain or ambiguous in the above re-
spect, and tina it was material for him to
be informed, for the purposes of his de
Tense, as to the character of the contrac;
on which the plaintiff based his claim
against the estate, he should have de-
INJURED on the seventh statutory
ground of demurrer.
If the claim on which this action was
brought be regarded as a claim based on
an express agreement, and for an agreed