
    W. T. Brown, as Administrator, etc., Appellee, v. Joseph Ammann, Appellant.
    
    No. 17,770.
    HEADNOTE BY THE REPORTER.
    
      Assumpsit—Loan or Trust—Answer—No Defense. In an action for money had and received the answer failed to state, and the evidence of the defendant, if taken as true, did not establish any defense to the cause of action, whether the money received by the defendant was a trust or a loan.
    Appeal from Sumner district court.
    Opinion filed November 9, 1912.
    Affirmed.
    
      W. H. Staffelbaeh, of Wellington, S. B. Amidon, and Jean Madalene, both of Wichita, for the appellant.
    
      W. W. Schwinn, of Wellington, for the appellee.
   Per Curiam:

W. T. Brown, as administrator of the estate of Herman Ammann, deceased, brought this action to recover from Joseph Ammann, one of the sons of the deceased, the sum of $700, and interest, which sum is alleged to have been a balance due from the appellant to the estate for money received by appellant from the deceased in his lifetime, which the administrator alleged was received in trust by the appellant from the deceased.

In answer the appellant admitted the receipt of $500 as a loan for which he was to pay seven per cent interest ; that no time was fixed by the verbal agreement to repay the debt; that more than three years had elapsed since the last payment, and that the action was barred by the three-year statute of limitations. The answer failed to allege that any demand for payment had been made by the administrator or by the deceased more than three years before the commencement of the action, or to allege any other fact which fixed any time when the repayment became due. The answer failed to state, and the evidence of the appellant, taken as true, did not establish any defense to the cause of action, but, on the other.hand, tended to admit and establish a cause of action.

The only controversy seems to have been whether the money was received by the appellant in trust, to be held for the use and benefit of his father, or whether it was a loan by the father to him.

The case was tried to the court and the court -found that the appellant was indebted to the estate in the sum of $600. It does not appear from the abstract that there was any finding as to whether the money was received as a trust or as a loan, and under the pleadings it does not appear to make any difference.

The judgment is affirmed.  