(concurring). The plaintiff and appellant brings this action to recover nearly $2,000 from the estate of James Grady on an alleged contract to contribute to the care of his sister. The plaintiff avers that she and Mary G. Cary are sisters of James Grady; that in 1908 at the Nicollet Hotel, in Minneapolis, it was agreed between Mrs. Livingston and her brother that they should care for their sister Mary, and that on such agreement Mrs. Livingston had advanced and paid for the care of the sister various sums amounting to $3,824.75, while James Grady had paid only $405, and that balance of his share is $1,507.38.
The answer denies that there ever was any such agreement. The jury found a verdict for the defendant, and plaintiff appeals. There was no evidence to sustain a verdict for the plaintiff, and, hence it is needless to consider any assignments of error. The case depends on the testimony of the sister Mary. She testifies that in 1908 she was saleslady in a Detroit house, and she earned from $15 to $25 a week. Then a sister at Minneapolis died and at the time of the funeral, she, Mrs. Livingston, and James Grady met at the Nicollet Hotel, in Minne*562apolis, and James Grady and Mrs. Livingston there promised each other to care for the sister Mary.
Giving full faith and credit to all the testimony by the plaintiff, it fails to show a legal contract. It shows merely a commendable and customary arrangement between prosperous members of the family to contribute to the care and expense of an unfortunate member. At the time of the arrangement in the Nicollet Hotel, the sister Mary was earning from $15 to $25 a week, which should have given her the means of providing for a rainy day. She was then no object of charity.
In December, 1914, James Grady died leaving an insurance policy of $3,000 payable to the sister Mary. She got the money and gave it to Mrs. Livingston, and it was used to pay the expense for which suit is brought without giving Grady any credit. To show that Grady should have no credit, the sister Mary testified that she herself received the $3,000 and paid it out on her debts; that she owed her sister at Salt Lake $1,000 for money loaned, and had sent the sister two $500 checks. Then, on being pressed and cross-examined, she confessed that she did not owe the sister anything, and had never sent her the $1,000, and that all her detailed testimony in regard to the matter was untrue. Hence, all her testimony goes for nothing, and the case presents no proof to charge the estate with any liability.
The court might well have directed a verdict in favor of the defendant, but without any direction the jury returned a verdict for the defendant.