In a suit for money had and received, the defendant, a brother of the plaintiff, testified that he, as administrator of the estate of the plaintiff’s deceased husband,- continued the operation of the decedent’s store business, and that the moneys sued for were turned over by the plaintiff as voluntary gifts, in the form of checks made payable to the store business, for the purpose of liquidating the indebtedness owing by the business of her deceased husband. He offered in evidence an order of the ordinary, as well as an agreement signed by the heirs of the decedent, authorizing him to carry on the business of the decedent. This documentary evidence was excluded by the court, as was also testimony by which the defendant sought to show, in support of his contention, that the business of plaintiff’s deceased husband was insolvent, and that he had personally received no portion of the moneys paid in by the plaintiff for the purposes indicated. The court also excluded testimony going to show that the plaintiff’s deceased husband was indebted to the defendant at the time he became deceased. The defendant also undertook to show by the plaintiff herself that the moneys were used to liquidate the indebtedness of the decedent, but was not permitted by the court to do so, on the ground that such evidence would be immaterial and • irrelevant. The plaintiff denied that the funds supplied by her to the business of her deceased husband were intended or understood to constitute a gift for the purpose of liquidating the decedent’s liabilities, and testified that the moneys were loaned directly by her to her brother, who agreed to pay eight per cent, interest thereon. The court directed a verdict for the plaintiff in the sum of $6782.98, besides interest, this being the amount advanced by her, less certain sums shown by the evidence to have been thereafter received by her-from the business of the deceased husband. The defendant moved for a new trial on the general grounds, on the ground that the direction of a verdict was illegal, and on the ground that the court erred in excluding the evidence referred to. He excepts to the overruling of his motion for a new trial. The contention is made by the defendant in error that the amendment to the motion for a new trial presents no question for *697determination, for the reason that, although it appears to have been approved by the trial judge as true, it does not appear to have been allowed and ordered filed. It is further contendéd that even if the amendment could be considered, it does not contain a valid assignment of error as to the action of the court in excluding the evidence referred to. •

Our rulings appear in the headnotes.

Judgment reversed.

ON MOTION EOR REHEARING.

A motion for rehearing is made in this case, in which it is set forth that the evidence in the record shows that the money sued for was received by the defendant after the expiration of the calendar year in which the decedent died and in which the defendant qualified as administrator, and that the document signed by the heirs at law authorizing the continuance of the business was not legal, in that, though signed by the ‘plaintiff for herself and by three adult children, it was signed for two of the children by the plaintiff as guardian. It is further contended that the ruling in the fourth division of the decision, to the effect that the plaintiff had a legal right to give money for the purpose of paying the debts of her deceased husband, is not correct, since it appears from the testimony in the case that a portion of the money employed did not belong to the plaintiff, but belonged to the minor children for whom she was guardian. This was a suit by Mrs. Taylor in her individual capacity, against the defendant Taunton in his individual capacity, for money alleged to have been loaned by the plaintiff to the defendant. The pleadings in no wise suggest that the money was owned otherwise than by the plaintiff, nor are the rights of any other person invoked. It would not seem, therefore, that the plaintiff could base a recovery in her own behalf on showing that the title' to a portion of the funds paid over was in persons other than herself.

In respect to the rulings excluding the testimony referred to in paragraph 3 (a) of the decision, the only relevancy which this evidence could have lay in the fact that it might possibly, in the opinion of the jury, throw light upon the reasonableness or unreasonableness of the opposing contentions. The validity of the signed agreement authorizing the defendant as administrator to carry on the business of the decedent does not affect, as a matter of law, *698tlie ability or'inability of the defendant to borrow money for the estate, or the right of the plaintiff to give money for the purpose of paying her deceased husband’s debts; but it was thought that inasmuch as the case would have to be submitted to the jury upon the sharply contested issue of fact, as to whether the money was loaned by the plaintiff or whether it was paid over as a gift for the purpose of liquidating her deceased husband’s indebtedness, they should be permitted-to determine that question in the light of all the facts and circumstances surrounding the transaction. It was only because this court believed that the jury, in resolving the one vital issue of fact, should have the benefit of any light which all the attendant facts and circumstances might possibly throw upon the question, that it was held that this evidence should be admitted along with the direct testimony upon the vital and disputed issue in the ease. Rehearing denied.