Menk vs. Steinfort. the same personal property. Plaintiff claims, and the evidence on her part tends to prove, that the note or instrument in controversy was given by the intestate for a part of the consideration of such reconveyance. The administrator claims, and the evidence on his part tends to show, that the signature to such note is not that of the intestate, and that if it is his signature, there was no consideration for the note. When the property was conveyed to the plaintiff, she caused to be assigned to the intestate, in part payment therefor, a mortgage belonging in whole or in part to her husband, executed by one Leshinger to secure the payment of $600. About a year after the reconveyance to the intestate, Leshinger paid the debt secured by such mortgage to plaintiff's husband, who delivered to the mortgagor a satisfaction of the mortgage, theretofore duly executed by the intestate. Defendant's objection to the admission of proof of such payment was overruled. In all the transactions pertaining to such conveyances, plaintiff's husband acted as her agent, and had the principal management and control of the business. The plaintiff's attorney stated, in general terms, that he offered Mr. Theodore Menk (plaintiff's husband) as a witness.` Objection being taken by the defendant, the court said: "You may show anything by Mr. Menk which he did as the agent of his wife when she was not present. Otherwise his testitimony is excluded." Mr. Menk was not examined as a wit ness. In charging the jury the court said: "It stands here uncontradicted that on the 9th of September, 1870, Mrs. Menk reconveyed this brewery property to Abendroth, and it is claimed by her, and has been testified to by her upon the stand, that the consideration paid by Abendroth upon a reconveyance of the property was as follows: the note in suit, $2,500; the Leshinger mortgage was surrendered back by Abendroth to Mrs. Menk;" - The plaintiff's attorney here inquired: "Your honor, does the testimony show that?" Menk vs. Steinfort. The court proceeded: "I am not stating what the testimony is. You will bear in mind that I am not attempting to state what the testimony shows, but what is claimed to be the testimony by the defense. But I understand that to be the testimony, nevertheless, of Mrs. Menk. I understand Mrs. Menk to have stated that the consideration paid and agreed to be paid by Abendroth on the reconveyance of this property was as follows: this note in suit, a reassignment of the Leshinger mortgage, and a surrender of the Menk mortgage for $600; these three items making the amount." Exceptions being taken to so much of this charge as related to the Leshinger mortgage, the record states that a reference to the reporter's minutes of Mrs. Menk's testimony disclosed that she had not testified that Abendroth had surrendered back the Leshinger mortgage to her on the reconveyance of this property; and thereupon the court said to the jury: "It seems, gentlemen, that Mrs. Menk's testimony does not show that this Leshinger mortgage was transferred back on a resale of this property." Two questions of fact were submitted to the jury: "1. Did William Abendroth, in his lifetime, make, execute and deliver to Charlotte Menk the promissory note in question, by writing his own name thereto as maker, as the same appears thereon, by his own proper hand? 2. Was the note in question executed and delivered by William Abendroth for a consideration actually received by him therefor?" The jury answered both questions in the negative. A motion on the minutes for a new trial was denied, and judgment was entered for the administrator for costs. From this judgment the plaintiff appealed. D. Hall, for appellant, contended that the evidence as to the satisfaction of the Leshinger mortgage was incompetent, in the absence of proof connecting the plaintiff with it in any way; that if there was sufficient proof of her husband's agency in the matter to admit such evidence against her, she was en Menk vs. Steinfort. titled to his testimony to prove that the payment and satisfaction had no relation to the resale or the note in question; and that the court charged, not only that the plaintiff testified to having received the Leshinger mortgage on the resale, but that she did, in fact, receive it, and this error was not cured by its mere retraction as to her statement. G. W. Bird, for respondent: 1. If there was any error in the charge of the court respecting the plaintiff's statements in her testimony, it was at once cured by the reading of the reporter's minutes, and the correction, by the judge, of his statement. Nauman v. Zoerhlaut, 21 Wis., 466; Emmons v. Dowe, 2 id., 369; Pilling v. Otis, 13 id., 498; Allerding v. Cross, 15 id., 530; Jenks v. The State, 17 id., 667; Strohn v. Railroad Co., 23 id., 129. 2. The plaintiff, having offered her husband as a witness generally in the action, and not to the specific matter of his agency, cannot complain that his testimony was excluded. Beard v. Dedolph, 29 Wis., 136. 3. All the testimony excepted to, with one exception, was offered to establish the defense of a want of consideration, and was confined by the judge, in his charge to the jury, to its bearing upon that question. And even if some of it was incompetent, the jury having found specially that the note was a forgery, its admission could not prejudice the plaintiff. LYON, J. The testimony tending to show to whom or for whose benefit the Leshinger mortgage was paid, had a direct bearing upon the second question submitted to the jury, to wit, the question of consideration, and, as we understand the charge given by the judge to the jury, was expressly confined to that question. Hence, we think the testimony was competent. But if it was not—if the court erred in admitting it,— the error is entirely immaterial, since the jury found that the signature to the alleged note is a forgery. After such finding, the answer to the second question was entirely superfluous, and, if wrong, can harm no one. Menk vs. Steinfort. 2. The plaintiff offered her husband as a witness generally in the cause, and not specially to testify only to matters in which he had acted as her agent. Under this general offer, it would not have been error had the court rejected him without qualification. This was ruled in Mountain v. Fisher, 22 Wis., 93. Hence, the qualified rejection of the husband as a witness cannot be error, even though the court may not have stated with entire accuracy the limits to which the testimony of an agent husband or wife should be confined. The learned circuit judge very properly observed that the husband was competent to testify to his acts as the agent of the plaintiff; but he further remarked that the husband could only testify to acts so done by him when the plaintiff was not present. We do not think this qualification can be sustained. No good reason is perceived why the husband may not testify to acts as the agent of his wife, done by him in her presence, as well as in her absence. But for the reason already stated the inaccuracy is harmless. Besides, it is a fair inference from the record that the plaintiff offered her husband to prove by him that he did not act as her agent in collecting the Leshinger mortgage. Clearly he was not a competent witness for that purpose. 3. The incorrect statement made by the judge to the jury, to the effect that the plaintiff had testified that the defendant's intestate was to reassign the Leshinger mortgage as a part of the consideration for the reconveyance of the property mentioned in the above statement of the case, is not ground for reversing the judgment. The inaccuracy was immediately discovered and corrected. It is not possible that any person of ordinary understanding could have been misled by the misstatement, when it was so promptly corrected. The foregoing observations dispose of all the material errors alleged by the appellant adversely to her. It follows that the judgment of the circuit court should be affirmed. By the Court.-Judgment affirmed. Tyler vs. Burrington, Adm'x. TYLER VS. BURRINGTON, Adm'x. CLAIM OF WAGES by one received into defendant's family in infancy. (1) Contract to pay wages not necessarily implied; may be implied from circumstances. (2) If received as a child, must show express contract. (3) Burden of proof. (4) Express contract defined. (5) Importance of distinction between circumstances from which contract implied, and circumstantial evidence of express contract. 1. The mere fact of receiving into one's family indefinitely an infant not of kin thereto, does not imply a contract to pay wages, though such a contract may sometimes be implied from the surrounding circumstances. 2. If it appears expressly, or from the surrounding circumstances, that the infant was so received in the relation of a child, the law excludes an implied contract to pay wages for his services; but an express contract to pay such wages may be established by direct and positive evidence, or by circumstantial evidence equivalent to direct and positive. Pellage v. Pellage, 32 Wis., 136. 3. One who, having been received in infancy into a family not of kin to her, seeks to recover for services rendered to such family, has the burden of proof to show either an express contract or surrounding circumstances from which a contract can be implied; and if it appears that she was received as a child, she must prove an express contract for wages. 4. In such a case the mere expectation on the one part to pay, and on the other part to receive wages, never expressed by the parties to each other, does not constitute an express contract, though, if established by competent evidence, such expectations of the parties may sometimes give color to circumstances tending to show that they entered into an express contract. Mountain v. Fisher, 22 Wis., 93, explained. 5. In such cases, juries should receive precise instructions on the distinction between circumstances from which a contract may be implied, and circumstantial evidence of an express contract; and verdicts proceeding on a confusion of these two things should be set aside. APPEAL from the Circuit Court for Jefferson County. The county court having allowed a claim of the plaintiff against the estate of D. D. Burrington, deceased, for personal services, an appeal was taken to the circuit court. On the trial there, it appeared that in 1860 the plaintiff, then about fourteen years old, being the child of poor parents, went to |