
    Volney White, Resp’t, v. Lafayette Knowles, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed April 12, 1889.)
    
    1. Action foe board—Instructions to jury.
    Where, in an action to recover for board furnished by plaintiff to defendant, the court charged the jury “that if they believed the board was-furnished by the plaintiff and r, ceived by the defendant, without any expectation of a promise to receive pay therefor, and was given and received without any such expectation * * * the plaintiff would not be entitled to recover, for if the plaintiff did not intend to make a charge, but. gave the board he furnished without any expectation of compensation, and as a gift, he cannot, after he had given, make a charge of it against, the defendant;'" and, in response to a request, “that between relatives, more or less remotely connected, the law does not imply a contract.”' Held, no error
    2. Same—Evidence—When agency not presumed—Payment.
    The defendant testified that on two occasions he paid to plaintiff’s wife-sums of money, but did not state why he was so induced, or on what account the same were paid. Held, that the payment does not justify an inference that it was made to plaintiff’s wife as his agent, or with an in tention that it should be received as a payment towards an indebtedness which defendant might owe him.
    Appeal from a judgment of the Chautauqua county court upon the verdict of a jury in the plaintiff’s favor for thesurn of $46.45; and from an order denying the defendant’s-motion for a new trial founded upon the judge’s minutes.
    
      A case was made containing exceptions. _ The action was-commenced in a justice’s court, and the jury rendered a verdict in the plaintiff’s favor for $38.45.
    
      Lafayette Knowles, app’lt, in person; A. C. Wade, for resp’t.
   Barker, P. J.

The plaintiff’s wife is the defendant’s sister. The defendant’s mother, for a period of years preceding her death, made her home with his sister, Mrs. White. The plaintiff is a farmer, residing in the vicinity of the defendant, where the defendant lived, who is an unmarried man. The defendant was never, in any proper sense of the term, a member of the plaintiff’s family. He made visits to the home of the plaintiff, staying a few weeks on some occasions and on others only a few days. The plaintiff’s evidence tended to prove that the board was supplied under such circumstances that the law would imply a promise by the defendant to pay for the same.

Upon all the evidence, it might be fairly inferred that there was no intention on the part of the plaintiff to charge the defendant with the board and lodging furnished when on visits to his house. The court charged the jury, in substance, that if they believed the board was furnished by the plaintiff and received by the defendant, without any expectation or promise to receive pay therefor, and was given and received without any such expectation, and the services were rendered by.the defendant without any expectation and without any charge for the same, or without expecting any compensation for the services rendered, then the plaintiff would not be entitled to recover, for if the plaintiff did not intend to make a charge, but gave the board he furnished without any expectation of compensation, and as a gift, he could not, after he had given, make a charge of it against the defendant. Nor could the defendant make a charge for the services rendered if they were so performed. Neither party excepted to these instructions.

At the close of the charge, the defendant asked the court to instruct the jury: “That there was no evidence of a contract in the case; that between relatives, more or less remotely connected, that the law does not imply a contract.”'

In reply to this request, the court said: That is true, but I charge you expressly that this is not one of that class of cases to which the defendant excepted.

It is difficult to determine the legal proposition intended to be affirmed in charging the jury as requested, and, at the same time, instructing them that this case did not belong to-the class of cases referred to by the counsel for the defendant. But in view of the general rules of law applicable to-cases of this kind, we think it fair to say, that the learned judge intended to rule that upon the evidence in this case, the proof did not show that the defendant was a member of the plaintiff’s family, so as to present the legal propositions stated by the defendant in his requests. The instructions which were given to the jury in the main~part of the charge, was a full statement of the law of the case, as presented by the evidence, and we are unable to discover any error in the special instructions. It is the duty of the appellant to prepare the bill of exceptions, and he should see to it that the points and exceptions upon which he relies, are clearly and distinctly stated. Any doubt or ambiguity in this respect must necessarily result to his injury, for it is the purpose of a bill of exceptions to present the rulings of the court on clear and distinct legal questions. The defendant testified as a witness in his own behalf, that on one occasion he paid to the plaintiff’s wife ten dollars, and after his mother’s death, which occurred some two months afterwards, he paid her a further sum of ten dollars; that after such payments had been made, he informed the plaintiff of the sums of money that he had paid to his wife, but did not state why he was induced to pay the same or on what account, and that the plaintiff made no reply to his statements, this being all the evidence which the defendant offered upon the subject; the court, on motion of the plaintiff, struck out the evidence, and the plaintiff excepted. There is nothing in the evidence from which the jury would be justified in finding that this money was paid to the plaintiff’s wife as his agent, or that it was the intention of the defendant that it should be received by the plaintiff as a payment towards any indebtedness which he might owe him. The money was not paid to the plaintiff, nor does it appear that he has derived any benefit therefrom, nor can it be inferred that the money was paid to the plaintiff’s wife during his absence from his home. It is quite as reasonable to suppose, perhaps, even more so, that the defendant gave this money to his sister as a present, and as some compensation to her for the care and attention which she had bestowed upon their mother during her last illness.

We think there was no error in striking out this evidence, as it did not prove the fact which the defendant sought to ■establish by it.

Judgment and order affirmed.

All concur.  