
    No. 1,928.
    Stanley v. Stanley.
    Husband and Wife. — Implied Contract. — A wife is not liable to lier husband in this State upon an implied contract only.
    Appellate Procedure. — Costs.—lietaxing.-—Where no motion to retax costs or to modify the judgment was made in the trial court, the action of the trial court thereon will not be reviewed on appeal.
    From the Madison Circuit Court.
    
      Ellison & 8prong, for appellant.
    
      W. A. Kittinger and E. D. JReardon, for appellee.
   Lotz, J.

The parties to this action were husband and wife. The appellee sued the appellant, and he filed an answer in denial, and another paragraph in which he claimed $500 for work and labor done on the appellee’s farm, and for taxes paid thereon.

The cause was tried by the court and a special finding made, on which conclusions of law were stated and judgment rendered in favor of appellee.

It is sufficient for the purposes of this case to say that the second paragraph of the answer is insufficient in law. It declares upon an implied contract only. In the case of Harrell v. Harrell, 117 Ind. 94, this language is used: “The relationship between the parties does, however, exert an important influence upon the contracts of the wife. It is doubtless incumbent on the husband to show an express contract and its consideration, as well as good faith and voluntary action. We very much doubt whether he could recover without alleging and proving an express contract and its consideration in any case. ” The pleading in this case does not aver an express contract, nor was there any finding to that effect. In fact the finding is silent upon the facts pleaded. The evidence is. not in the record, and upon the facts found the judgment rendered is eminently right.

Filed February 18, 1896.

The appellant also complains of the action of the court in taxing all the costs to him. But as no motion to retax costs or to modify the judgment was made, the questions are not properly presented.

Judgment affirmed.  