The real issue in this case was whether the transaction between the plaintiff’s intestate and the defendant was a gift, and upon that issue the jury returned a verdict in favor of the defendant. A motion for a new trial on the ground, among others, that the evidence was insufficient to justify the verdict, was denied by the Court below. If there is any evidence to sustain that verdict, this Court will not disturb the order of the Court below. For the purpose of determining that question, it will only be necessary to consider such portions of the testimony as are most favorable to the defendant. And we think that that contained in the following extracts will suffice:
In one part of his testimony the defendant says: “ So I *62asked him (Helm) if he would lend me three thousand five hundred dollars to buy one hundred shares of California, and he said that he would. He said, ‘ Do you think it would be best for me to buy ?’ Well, I said, this is the information, I think it good: this man don’t state things to me unless he means it, and he even said he would protect me. Then he said, ‘ All right, then, I will buy a hundred shares myself,’ and Phil. McGovern said that he would like to buy fifty, and the next day McGovern bought the stock. I could not tell what day of the month that it was McGovern bought the stock, or part of it. In one or two days after I came in and asked McGovern if Helm had been there, he said ‘Ho,’ he said we ‘want to fix that matter up with him, and we will when he comes in to-day or to-morrow,’ and during the conversation Helm came in, and I said to him familiarly, as I always did, Jim, let us fix that matter up about that stock transaction, Mr. McGovern will indorse my note and I will indorse his; so either McGovern went for pen and ink or asked the barkeeper to hand him pen and ink; it was standing at the end of the counter. Helm said, ‘Ho, I am not going to take any notes for this money, I am going to make you a present of this stock.’ I said, Well, that is no way to do business, that is not a business transaction. ‘Well,’ said Helm, ‘that is the way I am going to do business; you have saved me thousands of dollars on the sale of that horse, and that is the way I am going to do this business.’ I said, All right if you mean it, let us take a drink. We took a drink, and McGovern handed me my stock and handed Helm his, and kept his own. * * # After that I had some further conversation with him again upon that subject, at a subsequent time. The stock went from 'thirty-five dollars to fifty dollars, and he and I were walking down together, and I said, Helm, I am going to sell that stock and pay you the money. He said, ‘ Martin, I have made you a present of that stock, and I meant it, and do mean it, and I will never take a cent of it.’ The conversation dropped and I said, all right.”
McGovern testified that on the day following that on which the interview first above referred to occurred, Helm gave to him, McGovern, sufficient money to purchase two hundred and fifty shares of stock, and that he, McGovern, gave the *63money to a broker with directions to purchase that number of shares, which he did. “After I got the stock,” says McGovern in his testimony, “ I think it was a day or two after-wards—Mr. Martin was in there and Mr. Helm walked in, and Martin says to me, ‘Let us fix that stock transaction now,’ that is, for Martin to give him a note and I indorse it, and I give my note and he indorse it for me; that is the way we were going to give our notes, and I started to get some pen and ink, and while Mr. Martin was talking, maybe it was Van, my barkeeper, I went or told him to get it, to go in the back room and make out the notes, in the back room of my saloon. Helm stopped right there. He said: ‘¡No, I won’t have no notes,’ says he: ‘ That stock I give to you, you are the two best friends I have got;’ and says he: ‘I want you to have it.’ ‘Well,’ says Martin, ‘That is a curious way to do business.’ ‘Well,’ he said, ‘That is the way I am, going to do this business’ So I handed Martin his stock, one hundred shares, and I gave Helm his one hundred shares and took fifty shares myself.”
“Q. That delivery was made after Helm had said he proposed to do that business in that way?
“A. Yes, sir.”
The transaction as narrated by these witnesses reduces itself to this: That Helm, being applied to by the defendant to loan him three thousand five hundred dollars to invest in certain mining stock, made some inquiries concerning the stock, and finally concluded to take one hundred shares himself. McGovern wished to buy fifty shares. Helm thereupon gave to McGovern a sufficient sum to purchase two hundred and fifty shares. After the purchase was made the three met again, when Helm insisted upon making a present of one hundred shares to Martin, fifty shares to McGovern, reserving one hundred shares himself.
If, as contended by appellant, each of these witnesses contradicted himself, and was contradicted by the other, the jury was the sole judge of the weight to be given to their entire testimony, and to every part thereof. This court can not pass upon the question of the credibility of witnesses, nor upon the preponderance of evidence.
The plaintiff was sworn in her own behalf, and on her *64cross-examination stated that her' intestate " owned a horse named Sam Purdy,” which was sold after her husband’s death, at auction. Thereupon defendant’s counsel asked, “ What was the price he brought ?” The question was objected to by defendant’s counsel as not being proper cross-examination, and as being irrelevant and immaterial. And in reply to a remark made by the Court, plaintiff’s counsel, said that if the defendant wished to make the witness his own, he, plaintiff’s counsel, had no objection, although he could not see the relevancy of the -testimony. Defendant’s counsel then explained the object he had in asking the question and the Court said that it might be answered. Plaintiff excepted. That horse is frequently mentioned by the witnesses, without objection, save in this one instance, and while we are unable to discover that the price which he sold for was material in any sense, we are not prepared to hold that the judgment should be reversed because the witness was asked and permitted to state, after she had stated that the horse was sold at auction, what price he brought.
The plaintiff’s exceptions to the charge of the Court áre based upon the assumption of counsel that there was no evidence which tended to prove that the transaction was a gift. We have already indicated that, in our opinion, there was some evidence tending to prove that such was the transaction. We do not think that there was any error in the charge of which appellant can justly complain.
Judgment and order affirmed.
Morrison, C. J., McKee, J., and Thornton, J., concurred.