- This is an appeal from the judgment of the district court of Cass county.
The issues of such case were tried to a jury, and a verdict was returned by them in favor of the defendant.
The facts in the case are substantially as follows: James H. Grady, deceased, Bose E. Livingston, and Mary Cary were brother and sisters. It is claimed by the plaintiff that, during the lifetime of Grady, she and Grady entered into an agreement whereby each was to contribute ratably to the support of Mary Cary. Plaintiff claimed that Mary Cary was an invalid and unable to care for or support herself. It appears that Grady had taken out a life insurance policy on his life for the sum of $3,000, which was payable to Mary Cary after the time of the insured’s death. Such insurance upon the life of Grady was collected after his death and paid to Mary Cary. Bose E. Livingston filed a claim against the estate of Grady for $1,921.38, claiming that Grady made an express contract with her during his lifetime to contribute ratably to the support of Mary Cary, and that the amount of said claim was the amount due from Grady, none of which had been paid except $405. The defendant, to the complaint of the plaintiff, entered a general or specific denial to all of the allegations thereof, except that he admitted the filing of such purported claim.
There are presented in this case but two questions for our consideration. Eirst, the insufficiency of the evidence to justify the verdict of the jury; second, errors of law occurring at the trial from the exclusion *559of certain testimony offered by tbe plaintiff, and alleged erroneous instructions of law by tbe court. In order to determine wbetber or not tbe evidence is sufficient to sustain a verdict, it is well to refer to tbe pleadings in tbe case to determine wbat matters were put in issue by sucb pleadings. One of tbe main matters relied upon by tbe plaintiff, and largely tbe one upon wbicb ber entire claim rests, is tbe assertion in tbe complaint that at a certain time during tbe lifetime of Grady tbe plaintiff and be entered into an agreement whereby they should jointly care for and furnish medical attendance to,- and incur other expenses in connection with tbe care and keep of Mary Gary, their sister, during ber lifetime, and should equally share tbe entire expense with reference thereto. Plaintiff alleges ber reliance upon sucb promise and agreement, and claims she thereby incurred expense to tbe amount of $3,824.75. She has filed ber claim against tbe estate of Grady in one half that amount, less a certain credit hereinbefore stated. Tbe complaint does not allege wbetber tbe alleged agreement was in writing or was made orally. We assume from tbe complaint tbe alleged agreement was not in writing, but, if entered into at all, was entered into orally.
In tbe trial court sucb agreement was claimed and relied upon as an express contract. Wbetber sucb contract was in fact made was a question of fact exclusively for tbe jury. There was some testimony tending to show that such contract was made. There was other testimony wbicb tended to show that sucb contract, was not made. Tbe testimony of Mrs. Grady, tbe widow of tbe deceased, was to tbe effect that she was present at tbe Nicollet Hotel, in Minneapolis, at tbe time when said alleged agreement was claimed by tbe plaintiff to have been made, and did not bear anything of tbe contract referred to. This tends of course to prove that no contract was made. While negative testimony may not be entitled to as much weight and credit as positive testimony, we must not overlook tbe fact that tbe weight of testimony is exclusively a question for tbe jury. Wbetber or not there was an express agreement was a disputed question of fact about wbicb there was conflicting testimony either of a positive or negative character, or both, and it was tbe exclusive duty of tbe jury to weigh all sucb testimony. It did so and returned a verdict in favor of tbe defendant, and sucb verdict was sufficiently supported by tbe evidence.
*560Plaintiff makes a further claim of error in regard to admission of testimony concerning a certain insurance policy for $3,000, to which we have before referred, claiming that the defendant having interposed no plea of payment, all the testimony with reference to the insurance was inadmissible. While it is true that the answer does not contain any allegation of payment, we are of the opinion notwithstanding this, that the testimony brought out by the defendant on cross-examination of Mary Cary in regard to the insurance policy and the disposition of the money received from such policy was competent to show the plaintiff, at the time of filing such claim against the estate, actually and in fact had no claim to file. That she had received from other sources a sufficient amount of money to reimburse herself for all the money, if any, she had expended for the support of Mrs. Cary. One needs but to read the testimony of Mrs. Cary to readily conclude that Mrs. Livingston received as much money from Mrs. Cary as she had paid out for her, and it was immaterial if such money was the proceeds of the insurance policy. If Mrs. Livingston received the money from Mrs. .Cary with which to pay Mrs. Cary’s expenses of living, doctor bills, etc., she certainly had no claim against the estate of Mr. Grady.
We have examined the instructions of the court with reference to the payments made from such $3,000 fund, and in them find no prejudicial reversible error. Mrs. Livingston had filed a large claim against the estate of Grady. Any testimony which would show that such claim was not owing to her was competent. We do not wish to set out the testimony in question and answers, but the testimony of Mrs. Cary shows in effect that she put the $3,000 in a bank in Syracuse; that she thought Mrs. Livingston drew checks thereon; that she paid for everything for her living for the past six or seven years, and that this included board and clothes and things of that kind, and also doctor bills.
One of the questions asked of Mrs. Cary is as follows:
Q. So you used these $3,000 to pay these living expenses ?
A. Yes.
The jury by their verdict simply found in effect that Mrs. Livingston had no claim against the estate of Grady, for the reason that she had received money sufficient from other sources for the purpose of dis*561charging all obligations that she had paid or contracted for. in behalf of Mrs. Gary. The jury were the exclusive judges of the weight and credibility of all the testimony, including that of Mrs. Cary, which was in places quite badly shattered. It was their province to believe or disbelieve the testimony of any witness if it appeared to them to be untrue, or to believe that part of the testimony of any witness which appeared to be true, and disbelieve that part which appeared to them to be untrue. The jury has passed upon all the testimony in this case, and the verdict is sustained thereby. With their determination we cannot interfere. The source of the power and duty of the jury in such cases is derived from the Constitution, and not from the consent of the court; nor is their duty to be interfered with by the court so long as there is evidence supporting their verdict.
We have examined the eases cited by the appellant, and find nothing therein which would in any way conflict with the conclusion we have arrived at in this case.
The judgment is therefore in all things affirmed, with costs.