Livingston v. Holt
| Decision Date | 27 November 1917 |
| Citation | 165 N.W. 975,38 N.D. 556 |
| Parties | LIVINGSTON v. HOLT. |
| Court | North Dakota Supreme Court |
Where one presented a claim against the estate of a deceased person through the administrator of such estate, and the administrator refused payment thereof, and suit was brought by the claimant against the administrator, and the administrator answered, but did not plead payment, notwithstanding such failure to plead payment, it is proper to show by competent testimony that the plaintiff has received money from other sources which reduced, or showed payment of, the claim filed with the administrator, and upon which suit was brought. All such evidence was competent to show that the plaintiff had no claim against the estate.
Appeal from District Court, Cass County; A. T. Cole, Judge.
Action by Rose E. Livingston against Daniel B. Holt, as administrator of the estate of James H. Grady, deceased. Judgment for defendant, and plaintiff appeals. Affirmed.M. A. Hildreth, of Fargo, for appellant. Lawrence & Murphy, of Fargo, for respondent.
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, Rose 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. Rose 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: First, the insufficiency of the evidence to justify the verdict of the jury; second, errors of law occurring at the trial from the exclusion of certain testimony offered by the plaintiff and alleged erroneous instructions of law by the court. In order to determine whether or not the evidence is sufficient to sustain a verdict, it is well to refer to the pleadings in the case to determine what matters were put in issue by such pleadings. One of the main matters relied upon by the plaintiff, and largely the one upon which her entire claim rests, is the assertion in the complaint that at a certain time during the lifetime of Grady the plaintiff and he entered into an agreement whereby they should jointly care for and furnish medical attendance to and incur other expenses in connection with the care and keep of Mary Cary, their sister, during her lifetime, and should equally share the entire expense with reference thereto. Plaintiff alleges her reliance upon such promise and agreement, and claims she thereby incurred expense to the amount of $3,824.75. She has filed her claim against the estate of Grady in one-half that amount, less a certain credit hereinbefore stated. The complaint does not allege whether the alleged agreement was in writing or was made orally. We assume from the complaint the alleged agreement was not in writing, but, if entered into at all, was entered into orally.
In the trial court such agreement was claimed and relied upon as an express contract. Whether such contract was in fact made was a question of fact exclusively for the jury. There was some testimony tending to show that such contract was made. There was other testimony which tended to show that such contract was not made. The testimony of Mrs. Grady, the widow of the deceased, was to the effect that she was present at the Nicollet Hotel in Minneapolis at the time when said alleged agreement was claimed by the plaintiff to have been made, and did not hear anything of the 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 the fact that the weight of testimony is exclusively a question for the jury. Whether or not there was an express agreement was a disputed question of fact about which there was conflicting testimony either of a positive or negative character, or both, and it was the exclusive duty of the jury to weigh all such testimony. It did so, and returned a verdict in favor of the defendant, and such verdict was sufficiently supported by the evidence.
Plaintiff makes a further claim of error in regard to admission of testimony...
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