#### Fallon, Appellant, vs. Vandesand, Respondent.

*April 20*

September *29, 1908.*

*Gifts: Evidence: Declarations of donor: Promise to repay: Burden of proof: Payment: Instructions to jury: Immaterial error.*

1. In an action upon an alleged express contract by defendant to repay tbe amount of a surgeon’s bill paid by plaintiff for an operation on bis daughter, defendant’s wife, a declaration by-plaintiff, in conversation with a third person about ten days before the payment was made, that he was to pay for the operation because defendant had had expense enough, was admissible to show that the money was paid by plaintiff as a gift.

2. The burden of proof was upon the plaintiff in such case with reference to the request for the loan and the promise of repayment.

3. It was error in such case to instruct the jury that the burden was upon plaintiff to show that there had been no repayment, but there being no issue as to repayment raised by the pleadings or evidence, and no claim that the money had been repaid, the error was not prejudicial or material.

Appeal from a judgment of tbe circuit court for Racine county: E. B. BeldeN, Circuit Judge.

*Affirmed.*

Tbe cause was submitted for the appellant on tbe brief of *Fish &*Storms, and for tbe respondent on that of *Louis H. Bohr*and *Simmons, Nelson & Wallcer.*

For tbe appellant it was contended, *inter*alia, that tbe *247court below erred in submitting to the jury tbe issue of payment, and further erred in placing the burden of proof as to that issue upon the plaintiff. *Kuenster v. Woodhouse,*101 Wis. 216, 77 N. W. 165; *Knapp v. Runals, 2>1*Wis. 135; *Studebalser Bros. Mfg. Co. v. Langson,*89 Wis. 200, 61 N. W. 773.

Among other references upon the part of the respondent were the following: 20 Cyc. 1222; *Pritchard v. Pritchard,*69 Wis. 373, 34 N. W. 506; *Miller v. Ciarle,*40 Eed. 15; sec. 2829, Stats. (1898) ; *Schmeclcpepper v. C. & N.*W. *R. Co.*116 Wis. 592, 93 N. W. 533; *Jaclcson v. State,*91 Wis. 253, 64 N. W. 838; *Williams v. Hoehle,*95 Wis. 510, 70 N. W. 556; *Johnston v. C., St. P., M. & O. R. Co.*130 Wis. 492, 110 N. W. 424; *Abbott v. Milwaukee L., H. & T. Co.*126 Wis. 634, 106 N. W. 523.

The following opinion was filed May 8, 1908:

TimliN, J.

In this action to recover $200 for money loaned, the jury returned a verdict for defendant. Defendant’s wife was dangerously ill, a surgical operation was necessary, and the plaintiff, her father, paid the surgeon’s bill of $200. Plaintiff claimed an express contract on the part of defendant to repay this sum, and the defendant contended that the money was paid by the plaintiff as a gift or gratuity for the benefit of his daughter. The case was not presented in the trial court nor in this court upon any claim that the money so paid partook of the legal quality of necessaries furnished to or for the defendant’s wife. But it is contended that upon the issues as submitted the court erred in admitting the testimony of one Reed regarding a conversation with the plaintiff, had about ten days prior to the transaction in question, in which conversation’the plaintiff stated that he was to pay for the operation because the defendant had had expense enough. We think the testimony was competent, within the rule of authorities cited in 20 Cyc. 1222.

*248It is next contended that tbe court erred in its instructions to tbe jury. Tbe charge was in these words:

> “If you are satisfied by a fair preponderance of all tbe credible evidence in tbe case that tbe plaintiff paid tbe money in question for tbe defendant, that the defendant promised to repay it on demand, that demand for repayment has been made and that repayment has not been made, you will return a verdict for tbe plaintiff. If you are not so satisfied, you will return a verdict for tbe defendant. As I said before, tbe burden rests upon tbe plaintiff to satisfy you as to tbe truth of bis contention.”

Under tbe theory upon which tbe case was tried and submitted by both parties it was not error to place tbe burden of proof upon tbe plaintiff with reference to tbe request for tbe loan and tbe promise of repayment. It was error, however, to instruct tbe jury that tbe burden of proof was on tbe plaintiff to show that payment bad not been made. But there was no issue of payment raised by the pleadings or tbe evidence, and no claim that tbe money in question bad been paid by tbe defendant or by any person for him. Consequently tbe error last noticed was not prejudicial or material. Sec. 2829, Stats. (1898); *Studebaker Bros. Mfg. Co. v. Langson,*89 Wis. 200, 61 N. W. 713; *Johnston v. C., St. P., M.*& *O. R. Co.*130 Wis. 492, 110 N. W. 424.

*By the Court.*— The judgment of tbe circuit court is affirmed.

A motion for a rehearing was denied September 29, 1908.