In plaintiff's complaint three alleged causes of action were set up; the first upon an express contract, the second and third for the reasonable value of work performed. At the conclusion of plaintiff's testimony a nonsuit was granted as to the second and third causes of action. In the first cause of action it was alleged that the agreement between plaintiff and defendant was that the defendant should pay the plaintiff $2.50 per foot for drilling the well for the first three hundred feet, and fifty cents additional per foot "in every 100 feet thereafter dug"; that the exact depth of the well was not first decided upon, but that plaintiff was authorized to drill the first three hundred feet, and that the matter as to whether a greater depth in the ground should be penetrated was left to the decision of the defendant, who was to notify the plaintiff as to how deep he wanted the well dug. It was further alleged that the plaintiff drilled the well to a depth of 360 feet; that there was no water in the hole at that depth; that the plaintiff notified the defendant that the conditions were unfavorable for securing water and asked for instructions as to whether he should drill deeper, and defendant notified the plaintiff to cease drilling. After the nonsuit was granted as to the second and third causes of action, plaintiff was allowed to amend his complaint by alleging that defendant neglected and refused to give any decision as to what depth the well should be dug, and never gave any such decision, but instructed the plaintiff to go from the property, and so prevented plaintiff from digging any deeper, and from perforating and sand-pumping the well, as the contract required, and that for such reason said perforation was not made and the casing was not put down deeper in the hole. There was no allegation incorporated, either in the statement of the first alleged cause of action or in the amendment made thereto, as to what the reasonable value of the work performed was. The written offer first made by the plaintiff to the defendant, the acceptance of which by the defendant created the contractual relation between the two, provided that, in addition to drilling the well, the plaintiff was to put down casing furnished by the defendant, and was to perforate and sand-pump the well and leave it in first-class condition for a pump to be installed. The condition of the complaint as it was left after the trial judge had granted the motion for nonsuit on the second and third causes of action, was that the express con

tract and its terms were stated, and the depth to which the well was dug was stated. It was alleged that the work was not completed as called for by the contract because of the action of the defendant, and that there was left undone the placing of the casing to the bottom of the hole and the perforation thereof. It is quite clear from this statement of the allegations of that cause of action that the price as fixed by the contract would not be a measure of the value of the work performed, calculating at the price per foot agreed upon, from the top of the well to the bottom. Necessarily it would be presumed that the work of perforating and sand-pumping the well, and putting the casing down to the bottom, would cost the plaintiff something in time, material, and effort, which would have to be taken into account in determining what his services were worth. This situation showed clearly the necessity for pleading the value of the work, as far as it had progressed when stopped by the defendant, and we think the complaint did not state a good cause of action without such allegation. While counsel for respondent insists that the contract price was evidence of the value, it cannot be conceded that it would constitute evidence of the value where the work had not been fully performed. As is said in Cox v. McLaughlin, as that case is reported in 52 Cal. 590: "Where a variance has occurred in the performance of a specific contract, under such circumstances as still enable a plaintiff to maintain an action on the implied promise to pay the reasonable value of the work actually done, and the contract, so far as it has been performed in accordance with the specifications therein contained, the contract may ordinarily be introduced as evidence of value." The controversy involved in the case cited was before the court on several appeals, to wit: In 54 Cal. 605; 63 Cal. 196, 198; 76 Cal. 60, [9 Am. St. Rep. 164, 18 Pac. 100]. In that case work having been abandoned under a grading contract before final completion, and because of alleged acts of prevention on the part of the cocontractor, the plaintiff set up the particular contract and sought recovery thereunder. The court indicated that damages might be recovered, but not under the specific terms of the contract; rather for the value of the work performed, together with profits which might have been made upon the uncompleted portion thereof. Before the last appeal the trial judge had allowed an amendment setting up a cause of action on quantum meruit. The supreme

court held that there was no abuse of discretion in allowing this amendment. In one of the earlier appeals (54 Cal. 605) it was declared in the opinion "that the present is not an action on the implied promise is apparent, not only from the omission of any averment of the actual value of the work done, but from the whole frame of the complaint." As to whether the trial judge here was right in granting a nonsuit as to the second and third causes of action, is not involved, because no appeal was taken on the part of the plaintiff to review that ruling. As to the merits of the case on the facts, there was a conflict of evidence which places the determination of the jury regarding those matters beyond the reach of any review by this court. It appears that the well as put down was not perpendicular, neither was it straight. However, the plaintiff produced some testimony showing that a pump could be operated successfully, and that it was reasonably practicable to install a pump, in such a well; also, that there was no understanding or agreement that the well should be straight. These matters were directly contradicted by evidence which defendant introduced.

From what has been stated it will be apparent that the judgment and order must be reversed.

The judgment and order are reversed, with direction to the trial judge to allow the plaintiff, if he be so advised, to amend his complaint to correct the imperfection first herein pointed out.

Conrey, P. J., and Shaw, J., concurred.

[Civ. No. 1994. Second Appellate District.-December 28, 1916.] HARVEY DENIS ELLIS, Appellant, v. WILLIAM H. FUNK et al., Respondents.

TRANSFER OF PERSONAL PROPERTY-CONTEMPLATION OF DEATH-PAYMENT OF ACKNOWLEDGED INDEBTEDNESS FOR SERVICES-VALID SAI E. A bill of sale of personal property made by a person over seventyone years of age, feeble, and then suffering from the illness from which he died five days later, to his nephew, who had for a period of two years been serving him in caring for him and his property, and who was told by his uncle that he wanted to compensate him

for his labor and would give him a bill of sale of the property, constitutes a transfer for a valuable consideration, and not an attempted gift causa mortis.

ID. CONVEYANCE OF REAL PROPERTY-VERBAL PROMISE OF GRANTEESPAYMENT OF SUMS TO THIRD PARTIES-VALID TRANSFER.-A deed of real property made by a person over seventy-one years of age, feeble, and then suffering from the illness from which he died ten days later, to two of his nephews, whom he had told on several occasions that he wanted them to have the property, in reliance upon their verbal promises to comply with his wishes as to the payment of certain sums of money to third parties to whom he owed no legal obligation, constitutes a valid transfer, and not an attempted testamentary disposition of the property.

APPEAL from a judgment of the Superior Court of Los Angeles County. John M. York, Judge.

The facts are stated in the opinion of the court.

Flint, Gray & Barker, Wheaton A. Gray, P. E. Greer, and Phelps, Greer, Winston & Wharton, for Appellant.

George A. Skinner, and Jones & Weller, for Respondents.

SHAW, J.-This is an appeal from a judgment entered upon the granting of defendants' motion for a nonsuit made at the close of plaintiff's evidence.

Plaintiff is an heir of one George W. Ellis, deceased, and brought this action on behalf of himself and a number of coheirs to have certain transfers of real and personal property made by Ellis to defendants, who were nephews of deceased, set aside and annulled. Shortly after the death of George W. Ellis, defendant Funk wrote a letter to the plaintiff wherein he stated: "I will give you a statement of how Uncle George left his affairs. He left 5 acres of land on the west slope of Signal Hill with about 200 lemon trees on it. He left no will, but deeded his property to me and John H. Ellis of Riverside, and also gave us a bill of sale for all his personal property, and we have to settle all his indebtedness, which will be between $3,000 and $4,000. He gave me $1,000 and the personal, which amounted to $250, for what time I was with him, and requested us to give Nana Sanders $500 and to Mabel Coulter Warren $500 and to Ewena Belshaw $200, and to Lizzie, my wife, $500; and what was left John Ellis

and me were to divide equal between us.

Those are all the

bequests he made." In addition to any weight or inference to be drawn from this statement, the evidence construed most strongly in favor of plaintiff, tends to prove that ten days before the death of Ellis, who was a man over seventy-one years of age, feeble, and then suffering from the illness from which he died, and being averse to having his estate administered by the probate court, he, on November 20, 1911, executed a grant deed, absolute in form, conveying to defendants all his real estate, and five days later gave to one or both of them a bill of sale to all his personal property, thus divesting himself of all worldly possessions. That these transfers were made in contemplation of the apprehended near approach of death, admits of little doubt.

As to the personal property, the character of which is not made to appear, appellant insists that the purported transfer thereof was in the nature of a gift causa mortis, but that as such it must fail of its purpose for the reason that there was no actual delivery of the possession of the thing given made by the donor to the donce, nor any means of getting possession and enjoyment thereof (Knight v. Tripp, 121 Cal. 674, 679, [54 Pac. 267]); and while it appears that the personal property was made the subject of a bill of sale executed by deceased to defendants, it is insisted that gifts causa mortis cannot be effected by formal instruments of conveyance or assignment, but "are manifested by and take their effect from delivery." (McGrath v. Reynolds, 116 Mass. 566.) Conceding appellant's contention as to the essential elements of a gift causa mortis, it appears that the personal property was not the subject of nor intended to be a gift. The bill of sale was not offered in evidence, and some uncertainty exists as to whether it was executed to William H. Funk alone or to him and John Harvey Ellis, his codefendant, jointly. However this may be, it does appear without contradiction that Funk had for a period of two years been serving his Uncle George in caring for him and his property, and was told by the latter that he wanted to compensate him for his labor and would give him a bill of sale of the personal property. The transfer of the personal property, consisting, as stated by Funk, of "what stuff was there; that is, the farming horses and stuff, or the horse; he only had one horse," was made for a valuable consideration, to wit, in payment of an acknowledged indebted