| Wis. | Nov 12, 1909
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
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.