¶1I concur in the judgment. At the trial the plaintiff testified that in 1891 she loaned to the defendant the money sued for, and that no portion of it had been paid. She also testified that the money loaned him was her separate property, and was used by him in building a house upon a lot of land which was his separate property. This testimony of the plaintiff that the money was loaned to the defendant authorized a judgment in her behalf, unless he should by some affirmative evidence overcome the liability thus created.
¶2The theory upon which the action is defended, although there is no averment of that nature in the answer, is that the money which the defendant received from the plaintiff, was a gift. This was affirmative matter, of which the onus was upon him to establish by a preponderance of evidence. There was no evidence other than that of the plaintiff of the circumstances attending the transaction between her and the defendant, and it was net disputed that the defendant did in fact receive the money from her; and, while it was competent for him to show that he received it as a gift, there is no presumption that it was a gift; but, in the absence of any other evidence than that the plaintiff delivered the money to him at his request, the law would presume an obligation on his part to return it. The defendant did not testify at the trial, and the only evidence offered in support of his defense was the testimony of one witness that in a conversation with the plaintiff, prior to the date of the loan, she had said to him that she proposed to “advance” to the defendant money enough to put up a house upon his lot, and of two other witnesses who testified that some months after the loan, the plaintiff had said to them that she had “given” the money to the defendant. This testimony, in its most favorable view, was only an admission by the plaintiff to a stranger, remote from the time of the transaction itself, and disconnected therewith, as well as with the defendant, and in a conversation to which the defendant was not *328a party, and of which it does not appear that he had any knowledge; and, while the defendant would have been entitled to have it considered by the jury in aid or corroboration of any substantive evidence in support of his claim that the money had been received as a gift, it was insufficient of itself to establish such claim. Her statement that she had “given” him the money was not equivalent to a declaration that she had made him a “gift” of it, since the term is often used as the equivalent of a mere delivery. If the evidence relating to the transaction between the parties had been contradictory, or of an ambiguous nature, her subsequent statement that she had given him the money might have been explanatory of the transaction; but, in the absence of any testimony other than her own relative to the transaction itself, the court.was justified in holding that this testimony of her subsequent statements was insufficient to establish the defense, or to authorize the submission of the issue to the jury. Upon the testimony before it the court was authorized to hold that the defendant had not introduced any evidence in support of his defense which he was entitled to have considered by the jury, and it did not err in directing the jury to find a verdict in favor of the plaintiff.
¶3It is undoubted law that when the determination of an issue depends upon the weight to be given to conflicting evidence, or upon the credibility of witnesses, or inferences of fact to be drawn from established facts, the court is not authorized to withdraw the question from the jury; but it is equally settled that when the party upon whom the burden of establishing an issue rests has failed to introduce any evidence in siroport thereof, the court may direct the jury to find against him upon that issue. As was said by Hr. Justice Clifford in Improvement Co. v. Munson, 14 Wall. 448: “In every case, before the evidence is left to the jury, there is a preliminary question for the judge, not whether there is literally no evidence, but whether there is any upon which a jury can properly proceed to find a verdict for the party producing it, upon whom the onus of proof is imposed”; and in Pleasant v. Faut, 21 Wall. 116, the rule was stated by Mr. Justice Miller as follows: “If the court is satisfied that, conceding all the inferences which the jury could j nstifiably draw from the testimony, the evidence is insufficient to warrant a verdict for the plaintiff, the court may say so to the jury.” In *329Bulger v. Rosa, 119 N. Y. 464, it was said: “The test of the right to direct a verdict is whether the court would be bound to set a verdict aside as against evidence, if rendered against the party in whose favor it was directed. If this would be the duty of the court the judge need not await the verdict before acting, but in advance may rule the question as one of law. But, as verdicts cannot be found on mere conjecture, neither will a shadow or possibility, nor a mere scintilla, stand in the way of ruling the case in favor of the party who shows a substantial right of which there is no substantial contradiction.” (See, also, Commissioners v. Clark, 94 U. S. 284, and cases there cited; Lacy v. Porter, 103 Cal. 605.)
¶4As the verdict was rendered under the direction of the judge, his remarks in giving this direction did not influence the jury in their verdict, and, consequently, was not the subject of an exception.