The court refused to give at appellant's request an instruction, numbered 10, which reads as follows: "10. If you find from the evidence that the defendant agreed to sell to plaintiff lumber at the price of $26.50, and refused to deliver it at that price, but offered to deliver same at $27, you can in no event find for plaintiff in excess of 50 cents per thousand on the quantity so in controversy." [3, 4] The refusal to give this instruction presents the difficult question in the case. It is insisted that the instruction is a correct declaration of the law upon the theory that one should minimize his damages, and that appellee should have paid the $27 per thousand as demanded and then have sued for the alleged improper exaction of the 50 cents per thousand. But in opposition to this contention it is insisted that such a payment would have been voluntary and it could not thereafter have been recovered; and we concur in this view. Appellant had no right to demand a price in excess of that stipulated in the contract, and had appellee acceded to the demand made he could not, after having voluntarily done so, have maintained a suit for this excess, because the company was insisting that its demand conformed to the contract, and it denied then and denies now that it demanded a price for the lumber in excess of that fixed by the contract. We are cited to numerous cases which hold that one must minimize his damages, and that the party who fails so to do cannot recover any sum in compensation of the damages the accrual of which he should and could have prevented. But while the doctrine of those cases is universally recognized and has been frequently applied by this court, none of them appears ever to have extended this doctrine so far as to require one to abandon the assertion of a legal right in order that the party making the illegal and unauthorized exaction may not be required to pay an increased sum as damages. 35 Cyc. 605g. Counsel have cited us to only one case which appears to be exactly in point, and in our own investigation we have failed to find any other. But the case cited appears to be in point and to sustain the view which we have just expressed. The case referred to is that of Campfield v. Sauer, 189 Fed. 576, 111 C. C. A. 14, 38 L. R. A. (N. S.) 837. In that case the plaintiff sued for the unpaid price of lumber furnished under a contract, and the defendant set up a counterclaim for breach of contract in failing to deliver lumber as demanded. A difference arose over the price of the lumber, and the plaintiff wrote the defendant as follows: "We are perfectly willing to furnish the lumber, provided only you will stand the difference caused by the increase in price since our original agreement and as per your verbal agreement above mentioned." The court there said: "It is clear that had defendant accepted this offer he would have abandoned all claim for damages for the difference in price so paid. He was under no obligation to make such waiver for the sake of saving plaintiffs from liability for the damages which might result from delay through purchasing elsewhere. Coulter v. B. F. Thompson Lumber Co. (Sixth Circuit) 142 Fed. 706, 74 C. C. A. 38; Hirsch v. Georgia Iron & Coal Co. (Sixth Circuit) 169 Fed. 578, 95 C. C. A. 76. In the latter case Judge Lurton, speaking of the rule recognized in Lawrence v. Porter [63 Fed. 62, 11 C. C. A. 27, 26 L. R. A. 167], that one who has been damaged by the breach of a contract must do nothing to aggravate his injuries, and all that he reasonably can to mitigate the loss, said: "The duty imposed by the equitable rule referred to must be held within reasonable bounds. It is a rule which has never been regarded as requiring one to yield to a wrongful demand that he may thereby save the wrongdoer from the legal consequences of his own error.'" No attempt was made to show that appellee could have purchased this lumber elsewhere at the time delivery should been made at less than the prevailing market price. A different question would be presented had the testimony so shown. It is true he could have secured the lumber from appellant, when he placed his order at $27 per thousand, but it was the duty of the appellant company to comply with its contract and to furnish the lumber at the agreed price, or to offer to do so, and it had no right to demand of appellee that he yield the point in controversy for the purpose of minimizing the damages when it had complete power to comply with its contract. The court gave the following instruction on the measure of damages: "3. If you find for the plaintiff, the measure of his damages will be the difference, if any in reasonable market value of the lumber at the his favor, between the contract price and the time and place same should have been delivered by defendant to plaintiff, according to the contract." [5] And it is urged by appellant that as the place of delivery was the appellant's mill, where the lumber was manufactured, error was committed in permitting witnesses to testify what the market value of similar lumber was in Chicago. In testifying about the prices in Chicago appellee referred to a price list which appears to have been pub. lished by the Lumbermen's Bureau at Washington City, which he designated as a United States government publication. It is insisted that error was committed in this respect for two reasons: First, that the book did not undertake to fix the prices at appellant's mill, and for the further reason that the prices named in the book were those of September, 1917, whereas the lumber should have been delivered in lots of 100,000 feet commencing in March and ending in August. The witness testified, however, that he bought and sold lumber constantly and that he was familiar with the prices of lumber both at appellant's mill and in Chicago, and that the prices stated in the book were correct and were the prices generally used by lumbermen in buying and selling. He fur ther testified that his contract called for lumber on board cars, and that the price at any given point was ascertained by deducting the freight charges to Chicago from the price at Chicago and that he knew this freight rate to Chicago and ascertained the price at appellant's mill by deducting the freight from the Chicago price. He also testified that there was no variation in the price of lumber after the time he placed his order under the contract and that stated in the book, which appellee said he was using for the purpose of refreshing his recollection. This testimony was not undisputed, and there was testimony tending to show that the difference between the market price and the contract price was much less than appellee stated. But the jury did not give appellee judgment for as large an amount as his testimony would have warranted, and the verdict returned was evidently arrived at by the jury by reconciling the conflicting testimony in regard to the value. It was not improper for the witnesses under the circumstances stated to testify what the Chicago prices were, as there was no market for this lumber at appellant's mill except for the purpose of shipping to some one of the markets to which such lumber was ordinarily shipped. Allen v. Northern, 121 Ark. 150, 180 S. W. 465. Finding no prejudicial error, the judgment is affirmed. (181 Ky. 174) SCHRODT'S EX'R et al. v. SCHRODT et al. (Court of Appeals of Kentucky. June 18, 1918.) 1. EVIDENCE 568(2)—MENTAL INCAPACITY -NONEXPERT OPINION. Where the facts relied upon are insufficient to show mental incapacity, the opinions of nonexpert witnesses based thereon are likewise insufficient for that purpose. 2. WILLS 55(1)-MENTAL INCAPACITY. IDENCE. 166(1)-UNDUE INFLUENCE-EV In a will contest by a brother of the deceased, who had devised practically all her estate to a sister, evidence held not to show any undue influence on the part of the devisee. 4. WILLS 155(1)—"UNDUE INFLUENCE." "Undue influence" is such influence over the mind of the testator as destroys his free agency, and constrains him to do against his will what he would otherwise refuse to do. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Undue Influence.] 5. WILLS 155(4)-"UNDUE INFLUENCE." Any reasonable influence obtained by acts of kindness or by appeals to the feelings and understanding and not destroying free agency is not undue influence. Appeal from Circuit vision. Will contest by John T. Schrodt and others against Mary M. Schrodt's executor and others. Judgment for contestants, and the propounders appeal. Reversed, and cause remanded for a new trial. household effects worth about $20. By the will in question, which was wholly in the handwriting of the testatrix, and was made on February 19, 1916, she devised the home and deposit in the German Bank and the real estate bond or note for $750 to her sister Emma S. Butterweck, absolutely. She further bequeathed the $500 bond or note to Mrs. Butterweck for life, with remainder to her son, Louis Butterweck. She also bequeathed the sum of $300 to her brother Wm. Schrodt, and appointed Daniel Reidhar her executor. For a number of years the testatrix had lived alone in her Anchorage home. The lower part of the house was sometimes rented out. Up to the time of her death her sister, Alice Schrodt Singer, also lived at Anchorage. After the death of her sister, her husband, Edward Singer, married again, and Mamie Corbin and Alice Singer, the children of Alice Schrodt Singer, continued to live with their father and stepmother. Alice Singer, who is now 16 years of age, frequently visited the testatrix, and assisted her in her work, and the testatrix was very fond of her. While the testatrix was on friendly terms with her other relatives, they rarely visited her, and their relations were not intimate. On February 4, 1916, the testatrix wrote a letter to her sister, Mrs. Butterweck, stating in substance that she had been feeling bad, and would come in the next week and stay a while with her, hoping to feel better. She further told her sister to let her know if she could come for her, and that she would be ready. On February 6, 1916, Mrs. Butterweck and her son secured an automobile, went to Anchorage, and took the testatrix to their home. A few days later the testatrix sent for Mr. Reidhar, and asked him if he would act as her executor. He consented to do so if no bond was required. On February 19, 1916, the testatrix told Mrs. Butterweck that she desired to make her will, and requested Mrs. Butterweck to get paper and ink and some one to act as a witness. Mrs. Butterweck furnished the paper and ink, and telephoned to her son, Louis, to get a witness. Louis notified Robert Miller, who then went to the Butterweck At the time of her death, testatrix was 74 home, and was admitted by Mrs. Butterweck, years of age and unmarried, and left sur- and shown into the room occupied by testatrix. viving her one sister, Emma S. Butterweck, At that time the testatrix had written per three brothers, Wm. Wm. Schrodt, Schrodt, John T. haps three lines, and finished writing the will Schrodt, and James Schrodt, two nieces, in his presence. During that time Mrs. ButFlorence Barnes and Estella Marr, and one terweck came in and out of the room. When nephew, George J. Schrodt, Jr., children of the will was finished Miller affixed his sigher deceased brother, George J. Schrodt, nature as a witness. Thereupon the testaand two nieces, Mamie Schrodt Corbin and trix delivered the will to Mrs. Butterweck, Alice Singer, the children of her deceased and told her to put it away. Mrs. Buttersister, Alice Schrodt Singer. The property weck did not know the contents of the will of the testatrix consisted of her home in An- until she asked her to examine it about two chorage, $2,107 on deposit in the German weeks later. It further appears that the Bank, and two real estate bonds or notes, testator had been suffering for some time one for $750 and another for $500, and from a cancerous or tubercular affection of Dodd & Dodd, of Louisville, for appellants. O'Doherty & Yonts and R. H. Lucas, all of Louisville, for appellees. CLAY, C. This is a contest over the will of Mary M. Schrodt, who died a resident of Jefferson county on May 4, 1916. The grounds of contest were mental incapacity and undue influence, and both issues were submitted to the jury. The jury found that the will was obtained by undue influence. Judgment was entered accordingly, and the propounders appeal. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes business. her breast, but had concealed her disease, about the middle of February. At that time from all members of her family. On March she was not competent to attend to any 22d Dr. Chas. H. Witlach, a physician, was called in. He then discovered Mrs. Schrodt's condition, and continued to treat her until her death on May 4, 1916. John T. Schrodt, a brother of testatrix, said that he saw testatrix for the last time in November, 1915. At that time she was in Briefly stated, the evidence for contestants feeble health. After that time he made no is as follows: C. L. Russell, who had been a tenant of testatrix since October, 1915, and who saw her every day until her departure from Anchorage on February 6, 1916, gave it as his opinion that the testatrix about Christmas began to fail physically and mentally, and did not have sufficient mental capacity to make a will on February 19, 1916. He based his opinion on the fact that the testatrix would sometimes take no interest in the conversation, and get off on something else, but if you would call her attention to it she would come back to the subject under discussion, and on the further fact that he saw testatrix pick up sticks and trash in the yard, and sometimes pile it up, and sometimes carry it upstairs, and did not keep what he would call a good fire. He further testified that testatrix was fond of Alice Singer, and said to him more than once, "Well, when I am gone, I will remember Alice," but did not say in what way she expected to remember her. Ella B. Russell, wife of C. L. Russell, testified that she saw testatrix very frequently, and that the day testatrix left she seemed weak in mind. She also gave it as her opinion that testatrix was not mentally capable of making a will, basing her opinion on the fact that the testatrix did not keep a good fire, and did not eat enough. This witness further testified that testatrix always spoke of her brother in an affectionate manner, and was very found of Alice Singer. She never heard testatrix make any statement about what she intended to do with her property. Sallie Morris, who resided at Anchorage, and had known testatrix for several years, and had lived in the house with her for a while, and had seen her several times since, testified that testatrix was peculiar; that she took no pleasure in life. She further stated that testatrix was frail, and that her mentality was weak. She, too, gave it as her opinion that testatrix when she last saw her did not have sufficient mental capacity to make a will. She also testified that the Singers were going to move into the home of the testatrix, and the testatrix stated that she knew that her sister would object; that Louis Butterweck came out there and said that it would never do in the world for the Singers to move in there. That happened about two years before she testified. Margaret Morris, a music teacher, who had known testatrix six or seven years, testified that she called on her just before she left Anchorage and found her in very effort to see his sister until four days before her death. James Schrodt, another brother, testified that he saw testatrix in June or July, 1915, and on another occasion three or four weeks after she had gone to the home of Mrs. Butterweck. At that time she was nervous and had to be assisted to and from her bed. He would not say that she was crazy, but thought that there was a weakening of her mental faculties. He also gave it as his opinion that she was not competent to make a will. Mamie Singer Corbin, a niece of testatrix, saw testatrix in the summer of 1915, and on another occasion in the middle of April, 1916, two months after the will was made. Her association with the testatrix was just casual. At that time the testatrix was weak mentally. In her opinion the testatrix was not competent to make a will. Alice Singer, a niece of testatrix, testified that she used to run errands for testatrix, and help her get up her coal and kindling. Testatrix was never stout. When she called on testatrix about the middle of April she was weaker then than she had been before. She then lay down for part of the time, and part of the time was sitting up. At that time she noticed only a little change in her memory; not much. Testatrix told witness that she should have money to finish her education and study art, but did not say anything about giving her the money. Florence Schrodt Barnes testified that she knew nothing about the physical or mental capacity of the testatrix. Mrs. Edward Singer testified that she was the second wife of Ed. Singer. She saw testatrix during the fall and winter of 1915, and noticed that she was failing very fast. She did not seem at that time like she was in former days. The change in her mental condition was manifest by the fact that she arranged for the Singer family to move in, and then called them up and said that she had changed her mind. In the opinion of witness, testatrix was testatrix was not competent to make a will. Mrs. Birdie Rooksby testified that she lived in the house of testatrix for two years and eight months, and moved away in 1915, but never saw her after that. Testatrix's health was failing, but she never noticed any change in her mental power. Edward Singer testified that testatrix invited him and his family to come and live with her. He did not move in because testatrix called them up and said that she had changed her mind. He saw testatrix in January, 1916. At that time she was both physically and mentally weak. She had with difficulty. Her mental condition was not, were sufficient to show mental incapacity, it very good. In his opinion testatrix did not would be an easy matter to establish such have sufficient mind and memory to make a incapacity. Nor can the fact that testatrix will. He based his conclusion on the fact did not maintain a sufficient fire or provide that she changed her mind about having him herself with sufficient food in the opinions of as a tenant, and on one occasion her dress the witnesses be regarded as evidence of caught fire in the yard. Another reason was mental incapacity. Here the whole estate that she had very little to eat. of the testatrix did not amount to more than All of these witnesses testified to the affec- $6,500, and it was therefore necessary for tion existing between testatrix and Alice her to practice very strict economy in order Singer. There was also evidence by certain to conserve her estate, and her practice of experts that the letters in two or three words economy under these circumstances tended to in the will presented the appearance of hav-show a well-balanced mind, rather than mening been changed by another person or by tal incapacity. a pen different from the one used by the testatrix. Dr. H. H. Grant testified in substance that any long-continued disease, especially if it was progressing and getting worse, makes the patient less capable of interesting himself in life, and materially affects his judgment, and while it might possibly affect one's mind, it would not necessarily do so. [3-5] The only circumstances relied on to show undue influence are the fact that Mrs. Butterweck did not advise her brothers of her sister's condition until about three weeks before her death, and that Louis Butterweck objected to the Singers moving into the home of the testatrix, and the testatrix in response to his suggestion declined to permit the Singers to become her tenants. When we conOn the other hand, Louis Butterweck, the sider the fact that the testatrix was sufferMisses Moses, and the attending physician ing from a disease which she had studiously all testified to facts tending to show that concealed from all the members of her famtestatrix talked and acted in an intelligent ily, and that she objected to her brothers manner, and was fully capable of making a being sent for, we see no evidence of undue will. Not only so, but the letter written on influence, because Mrs. Butterweck complied February 4th was itself clear and intelligible. with her request. The same is true with reWhen testatrix reached the home of Mrs. spect to the suggestion made by Louis ButButterweck, she was not then confined to terweck that it would never do for the Singher bed, but moved around the house. Fur-ers to move into the home of the testatrix. thermore, the will itself, which was written Mr. Singer's first wife, who was a sister of by the testatrix, showed very clearly that the testatrix, was then dead. Mr. Singer she knew and remembered every item of had married again. The testatrix knew of property which she then possessed. It developed on cross-examination of Mrs. Butterweck that she did not notify her brothers of her sister's condition until about three weeks before her death, but she explained that her failure to do so was due to the fact that her sister requested her not to notify them. Mrs. Butterweck and her son both testified that they never told the testatrix not to permit Mr. Singer's family to move to her house. [1, 2] It will be observed that the only evidence of mental incapacity consisted of the opinions of nonexpert witnesses, based on the fact that the testatrix permitted her mind to wander from the subject under discussion, and that she did not maintain what the witnesses considered a good fire, or provide herself with nourishing food. We have frequently written that where the facts relied on are insufficient to show mental incapacity, the opinions of nonexpert witnesses based thereon are likewise insufficient for that purpose. Clark et al. v. Young's Ex'x, 146 Ky. 377, 142 S. W. 1032; Bush v. Lisle, 89 Ky. 393, 12 S. W. 762; Hildreth v. Hildreth, 153 Ky. 601, 156 S. W. 144. Very frequently the person to whom we are talking, as well as the subject under discussion, is not sufficiently interesting to hold our attention. Hence, if the mere fact that we permitted our minds to wander from the subject under discussion this fact, and whether the impropriety of At If, upon another trial, the evidence be substantially the same, the trial court will di |