#### Koenig, Appellant, vs. Koenig, Respondent.

*October 27*

November *12, 1909.*

*Pleading: Evidentiary matter: Contracts: Support of parent: Compensation: Evidence: Questions for jury.*

1. Where, in *an action*against plaintiff’s sister to recover the value of services rendered and expenses incurred at her request in supporting her father, the complaint, after stating that cause of action, further alleged that defendant, in consideration of the' support of her father, had received by his will his entire estate,, and that she had failed personally to support him, but had engaged plaintiff to do so for her, which he did as before stated, these last allegations were properly stricken from the pleading as being a relation of mere evidentiary circumstances.

2. Evidence in such case that defendant had received or been-promised her father’s property as consideration for supporting him before she requested plaintiff to do so, would have been competent as tending to show a mutual understanding that she would compensate plaintiff; hut mere statements made bv plaintiff on his cross-examination (which were properly stricken out because not responsive to any question) that he expected pay from defendant because she got the father’s property, would not, if they had remained in the case, have tended to show *619that defendant received the property pursuant to any promise-made before said request.

3. The mere facts that a son was requested by his sister to support their father; that he did so for twelve years without suggesting, until after the father’s death, that he expected compensation from the sister; that the sister received by the will the father’s property; and that the son claimed compensation out of the father’s estate, — were not sufficient to carry to the jury the question whether there was an agreement or understanding that the sister was to compensate him.

Appeal from a judgment of the circuit court for Brown county: S. D. Hastikgs, Circuit Judge.

*Affirmed.*

Action to recover, on contract, the reasonable value of plaintiff’s services and expenditures in supporting his father. The action was against a sister upon the theory that she became obligated to the father to support him by reason of his having agreed to make her his heir, and that she employed plaintiff to aid her in satisfying her obligation, which he did, rendering the services and incurring the expenses in question.

Following the statement of a cause of action, in general terms, to recover for the reasonable value of services rendered and for expenses incurred by plaintiff at the request of defendant, the complaint contained a paragraph to the effect-that defendant, in consideration of support of her father, received by his will his estate valued at $3,500; that she failed to personally render the service and engaged plaintiff to do so in her stead, which he did, as stated in the general declaration of his cause of action.

Defendant joined issue on all allegations of the complaint, except as to the relationship of the parties, and that plaintiff aided in supporting the father.

On motion, the added paragraph of the complaint, above mentioned, was stricken out as surplusage.

There was evidence to this effect: In 1896, plaintiff, a miller by trade, and a married man, was residing in a home *620■of his own. The father of plaintiff and defendant possessed a competency and boarded at a hotel, his expenses being paid by defendant. In such situation, in October, 1898, plaintiff visited defendant, by her written invitation. She then informed plaintiff that the care of her father was too much of a burden for her and requested him to assist, which he consented to do. The father was present and assented to the .arrangement. Following that, for a period of some twelve years, terminating with death of the father, he resided with the plaintiff and was supported and cared for by him, without making any claim upon defendant therefor in the meantime. There was further evidence that plaintiff expected defendant to pay for the service because she asked him to perform it, and that he filed a claim against the father’s estate because she got his property, on the theory that she should pay the claim if it was not otherwise paid. No proof was offered or received to the effect that, in the lifetime of the father, defendant agreed to take care of him in consideration ■of a promise to be paid therefor by being made his beneficiary by will. On cross-examination, unresponsively, plaintiff stated twice that he had thought defendant should pay his claim because she got the father’s property. The closing-incidents of the evidence were a question as to whether plaintiff knew at the time he was asked by defendant to aid her in caring for the father, that she had acquired, or was about to receive, property from him as consideration for supporting Rim, an objection to the question, at first sustained, but, upon it being stated that the question was confined to what occurred at the time plaintiff was requested to take care of the father, the court saying the question could be answered if •counsel purposed proving anything on the subject which was-■said at the time of the request. Thereupon the subject was •dropped. At the close of plaintiff’s evidence, on motion of ■counsel for defendant, a nonsuit wap granted and judgment was rendered accordingly.

*621For tbe appellant tbe cause was submitted on tbe brief of *John F. Watermolen.*

Eor tbe respondent there was a brief by *Minahan & Mina-han,*and oral argument by *V. I. Minahan,*

Maeshall, J.

It seems clear, tbe features of tbe com* plaint respecting defendant having received ber father’s estate as consideration for supporting him, and that she did not do so, but plaintiff did by ber request, as indicated in -the-cause of action stated, were a relation of mere evidentiary circumstances and, as such, not properly pleadable. So no-error was committed in striking such relation from the pleading.

Doubtless tbe fact, if there were such, that respondent bad received or been promised ber father’s property as consideration for supporting him before she requested plaintiff to do-so, — would be entitled to considerable, significance on tbe question of whether there was a mutual understanding at tbe time of such request, that she should compensate appellant, as be claims was the fact'. So proof of tbe existence of such-circumstance was competent. Tbe difficulty with appellant’s position, however, is that no evidence on tbe subject was offered. Mere unresponsive suggestions that appellant expected pay from respondent because she got tbe father’s property, were properly stricken out because of their unresponsive character. Had tbe evidence remained in tbe case-it would not have established or tended to establish tbe claim that respondent received tbe property pursuant to a promise, made prior to tbe alleged implied agreement to pay respondent for caring for tbe father.

It is considered that tbe question as to whether appellant knew when respondent requested him to care for tbe father, that she bad received, or was about to receive, property from tbe latter as consideration for supporting him, and tbe offer to allow any evidence that appellant might offer as to what *622was then said on the subject between the parties, opened the door for appellant to prove the circumstance relied on, if it ■existed and was in mutual contemplation, by anything said, at the time the request was made by respondent of appellant, upon which the claim against the former was predicated.

As the case stood at the close of the evidence, there was no proof that respondent received her father’s estate in consideration of her having promised to support him, and no suggestion that any proof could be produced, other than that respondent did receive the father’s property, which, standing alone, had the evidence been produced, would not have raised a jury question as to whether there was, as claimed, a mutual understanding twelve years before. There were the mere circumstances, that appellant, who was morally, as well as respondent, bound to support the father if he needed assistance, which does not appear to be the fact, was requested by respondent to assume such care; that he did so and carried the burden twelve years without any suggestion in the meantime that he expected compensation from his sister; and that he claimed such compensation in the end out of the father’s estate. Such circumstances come far short of sufficient to warrant holding that it appeared, with reasonable certainty, that there was a mutual understanding, as claimed, at the time appellant took the father under his care. Therefore, the motion for a nonsuit was properly granted.

*By ttie Court.*— Judgment affirmed.