ICeeWIN, T.
The circumstances surrounding this claim are peculiar, and there is much force in the contention of appellants that the- facts and circumstances strongly indicate that the first finding of the referee, to the effect that the claimant had been paid for his services, was correct. However, the court below had the right to re-refer the case because of failure to find on material facts. Upon the second reference the referee found in favor of respondent, and the report was confirmed by the court, and the main question is whether there is sufficient competent evidence to support the findings. It is well settled that if there is sufficient com*123petent evidence to support the findings the judgment will not be disturbed because incompetent evidence was admitted.. Gudden v. Estate of Gudden, 113 Wis. 297" court="Wis." date_filed="1902-02-18" href="https://app.midpage.ai/document/gudden-v-estate-of-gudden-8187220?utm_source=webapp" opinion_id="8187220">113 Wis. 297, 300, 89 N. W. 111; Currie v. Michie, 123 Wis. 120" court="Wis." date_filed="1904-11-15" href="https://app.midpage.ai/document/currie-v-michie-8188033?utm_source=webapp" opinion_id="8188033">123 Wis. 120, 101 N. W. 370. Sowe-are brought to the proposition whether there is sufficient competent evidence to support the findings.' The referee- and the court found that the claimant between June 1, 1897, and April, 1901, rendered services for deceased without any definite agreement, and for which he was to receive such-compensation as deceased might deem reasonable or determine, and that deceased died without having determined the-value of such services; that the value of the services is $2,233.57, and there was paid in money and property $398j. leaving a balance due of $1,835.57.
It is contended by appellants that the claimant relies upon an express contract. This contention is not supported by the claim filed or by the findings. The claimant declares for-services performed at the special instance and request of deceased and with her knowledge, and that such services were-reasonably worth $3,900. This is a good claim on quantum meruit, and would be supported by proof of performance and value. Upon this claim all that was necessary for claimant, to prove in order to make out a pmma facie case was the performance of the services and their value. This he could' do by his own testimony, because the performance of the alleged services and their value did not involve a transaction personally with the deceased, within the meaning of sec. 4069, Stats. (1898). Besides, there is evidence in the record by witnesses other than the claimant of the performance of' the services and their value. So upon this proposition the-findings are well supported by competent evidence.
The performance of the services and their value being established by competent and sufficient evidence, the next question is whether they had been paid for. Upon this proposition the burden of proof was upon the appellants, who en*124•deavored to- make tbe proof by putting in evidence tbe re.spondent’s bill of particulars, wbicb contained an itemized statement of bis account with tbe deceased in connection witb other proof, and also by calling respondent as an adverse witness. Tbe evidence of respondent, wben called by .appellants, utterly failed to prove payment of any amount further than that allowed by tbe referee. Tbe appellants •also produced evidence of various payments of small amounts at different times, wbicb tbe evidence tends to show were not in payment of tbe claimant’s services. It could not be •determined from tbe evidence bow much these small amounts .aggregated, or whether they were to apply on tbe respondent’s claim, or were otherwise expended for tbe use and benefit of the property of deceased. Obviously tbe referee and court 'below found they were not paid on tbe respondent’s claim. Payment being an affirmative defense, it was incumbent upon .appellants to prove it, and we cannot say that tbe findings as to tbe amount paid and balance due are against tbe clear preponderance of the competent evidence. Tbe court and referee found upon sufficient evidence that respondent was to receive for bis services such remuneration, in addition to tbe rent of premises occupied by him, as deceased might deem reasonable, and that deceased died without having determined tbe value of such services. Under such circurn- . stances tbe claimant became entitled to recover tbe reasonable value of bis services. Toledo, A. A. & N. M. R. Co. v. Lott, 10 Ohio Cir. Ct. 249; Van Arman v. Byington, 38 Ill. 443" court="Ill." date_filed="1865-04-15" href="https://app.midpage.ai/document/van-arman-v-byington-6951691?utm_source=webapp" opinion_id="6951691">38 Ill. 443. Tbe appellants’ contention tbal part of tbe services for wbicb claimant seeks to recover were of an illegal •nature we think is not supported by tbe evidence.
We think tbe judgment of tbe court below should not be • disturbed.
By the Court. — Tbe judgment of the court below is affirmed.