The opinion of the court was delivered by
Porter, J.:
Practically the only question presented by the appeal is the denial of the defendant’s counterclaim. In his testimony, the defendant frankly ad mitted that he.never had any intention of making any charges against the plaintiff until after this suit was commenced. For the same reason that the plaintiff was not permitted to recover on his first and second causes of action, the defendant can not recover ón his counterclaim. The sums of money he paid out for the use and benefit of the plaintiff are in law regarded as mere gifts to a member of his family. Neither party intended repayment, and the relations existing between them prevent any implied contract from being raised. (Story v. McCormick, 70 Kan. 323, 330, 78 Pac. 819.) The defendant, therefore, was not prejudiced by finding No. 10, to the effect that he had not expended anything for improvements on the plaintiff’s land. He had expended money, but doubtless the jury regarded the expenditures as money given to the plaintiff.
The judgment is affirmed.