
    William Ewarth, plaintiff in error, v. Ludwig Nier, defendant in error.
    S?erformanee: contract tor work and labor. In an action for work and labor, the answer admitted the performance of the same, but alleged that the services were to be rendered gratuitously. Judgment being rendered for the defendant, held, that as the defendant had failed to prove that at least a portion of the services sued for wore to be gratuitous, the judgment must be reversed.
    Error to the district court for Lancaster county. Tried below before Pound, J.
    
      Burr Marshall, for plaintiff in error.
    
      Lamb, Billingsley £ Lambertson, for defendant in error.
   Maxwell, Ch. J.

This is an action to recover for work and labor. The plaintiff alleges in his petition:

First. That in June, 1879, he, at the defendant’s request, plowed fifteen acres of land for him, which was reasonably worth $2 per acre, amounting to $30.

Second. That in January, 1879, he, at the defendant’s request, hauled fifteen loads of grain from the defendant’s farm to the city of Lincoln, which was worth $36. Also, in April of that year, he set out trees for defendant, which services were worth $2.

Third. That in the fall of 1878, he, at the defendant’s request, worked fourteen days with his team husking corn for him, which services were worth $21.

The defendant in his answer admits that the labor was performed by the plaintiff as alleged in the petition, but alleges that the same was “done and performed under the express and implied agreement between said plaintiff and this 'defendant that the said plaintiff would not, charge this defendant anything therefor,” etc. A counter-claim for the sum of $198.65 is also pleaded. The reply consists of a general denial, and, second, alleges that the matters set up as a counter-claim “were in consideration of said work and labor, and ]jy the terms of said agreement to be given to the plaintiff without charge,” etc. On the trial of the cause, the jury returned a verdict for the defendant, upon which judgment was rendered.

The plaintiff brings the cause into this court by petition in error.

The errors assigned are in substance that the verdict is against the weight of evidence.

Section 134 of the code provides that “every material allegation of the petition not controverted by the answer, and every material allegation of new matter in the answer not controverted by the reply, shall, for the purposes of the action, be taken as true,” etc. Comp. Stat., 547.

The answer admits that the labor was performed as stated in the petition, but it is alleged that such services -were to be rendered gratuitously. The burden of proof is upon the defendant to establish that fact. As to some of the items stated in the petition the defendant has entirely failed to prove that the services were to be rendered gratuitously, and as to those, at least, has failed to establish his defense.

As the case must be tried again, we will express no opinion upon the facts. The judgment of the district court is reversed, and the cause remanded for further proceedings.

Eeversed and remanded.  