Avgikos v. Lowry, 54 Utah 217.

case has been cited, and we doubt that one can be found, to support respondents' contention.

There are certain authorities which hold that where the contract provides for a sale of all the fruit harvested from a particular orchard or all the wool from a particular flock, when it is shown that the vendor has in good faith delivered the fruit harvested from that particular orchard or the wool clipped from the particular flock mentioned, then there has been a substantial compliance with the contract, even though the amount falls far short of that estimated in the contract. In the case at bar no reference is made to any particular flock of sheep. Plaintiff undertook to sell so many pounds to be clipped from a definite number of sheep, and it is admitted in the pleadings, and by all the testimony, that he failed to do so. It is not disputed in the case at bar that the price of wool had increased something like twenty cents per pound between the date of the contract and the date of delivery. The question should have been submitted to the jury, with instructions to allow the defendant such damages as he had sustained by reason of any loss caused by the failure of the plaintiff and his assignor to deliver the wool as specified in the contract, and that the measure of that damage would be the difference between the contract price and the market value of the article on the date of delivery.

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As a retrial of this action must be had, it is necessary to examine an additional assignment of error respecting the admission of testimony. It appears that prior to the filing of this suit several conversations were had between plaintiff and defendant respecting the matter in controversy, at which times the plaintiff insisted on being paid for the amount of wool delivered at the contract price, and the defendant declining to pay until the full amount of wool contracted had been delivered. The plaintiff, on his direct examination, was permitted to testify, over the objection of the defendant, that at one of these conversations the defendant stated that he would pay a certain sum, naming it, to settle the controversy. The objections of the defendant were that it was an offer of compromise, and as such was a priv

Appeal from Third District.

ileged communication, and, in addition, that the testimony was immaterial. Apparently this testimony was offered to show liability on the part of the defendant, or at least recognition on his part of some liability. Clearly, for that purpose, it was inadmissible. If the offer testified to was made in an effort to compromise, then it was privileged. Holt v. Great Eastern Casualty Co., 54 Utah, 543, 173 Pac. 1168.

It follows that the judgment of the court below must be reversed. It is so ordered, and the cause is remanded to the district court of Carbon county, with directions to grant a new trial. Appellant will recover costs on appeal.

CORFMAN, C. J., and FRICK, WEBER, and THURMAN, JJ., concur.

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GRIEVE v. HOWARD.

No. 3279. Decided March 28, 1919. (180 Pac. 423.)

APPEAL AND ERROR-EXCLUDING ANSWER-Review. Where defendant's objection to question was based solely on the ground that the statute prohibited witness from testifying to matter inquired about, the contention that questions did not indicate answers expected, and that plaintiff should have stated what he expected to prove in order that court might determine whether answers would be material and their exclusion prejudicial, cannot be sustained. (Page 230.)

WITNESSES-PRIVILEGED COMMUNICATIONS-WAIVER BY REPRESEN TATIVE. The personal representative of a deceased person may waive the privilege conferred by Comp. Laws 1917, section 7124, subd. 4, providing that physician or surgeon cannot be examined "without the consent of his patient" as to, etc. (Page 230.) STATUTES-ADOPTION FROM ANOTHER STATE-CONSTRUCTION. The construction of a statute in the state from which it is adopted, subsequent to adoption, is no more binding, so far as the rule of construction is concerned, than the decision of a court from any other state. (Page 240.)

WITNESSES-MATTERS EQUALLY WITHIN KNOWLEDGE OF DECEASED -ADMISSIBILITY AS AGAINST GRANTEE. In action by administrator to set aside deed of his intestate, defendant, defending as grantee and not as heir, could not object to plaintiff's testi

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Grieve v. Howard, 54 Utah 225.

mony on the ground that it was prohibited by Comp. Laws 1917, section 7123, subd., 3, as to testimony equally within knowledge of witness and deceased, such statute being inapplicable, in view of the relation of the parties.* (Page 241.) APPEAL AND ERROR-MOOT QUESTIONS. Respondent's contention that position taken by appellant in the trial court and that assumed by him in the court on appeal are inconsistent, that appellant in effect invited the ruling of the trial court of which he now complains, is a moot question, and need not be determined, in view of the fact that a new trial must be granted. (Page 242.)

DEEDS ACTION TO SET ASIDE-MENTAL INCAPACITY AND UNDUE INFLUENCE EVIDENCE ADMISSIBLE. Where mental incompetency and susceptibility to influence by others constitute the principal issue, letters and documents as well as other matters, tending to show the intelligence, judgment, mental force, and capacity of the party charged with mental deficiency, are material to establish the truth or falsity of the charge. (Page 243.) APPEAL AND ERROR-ASSIGNMENTS NOT ARGUED-REVIEW. Assignments of error not argued will not be considered. (Page 243.)

Appeal from the District Court of Salt Lake County, Third District; Hon. P. C. Evans, Judge.

Action by Simon Grieve, special administrator of the estate of Helen R. A. Grieve, deceased, against Mark A. Howard.

Judgment dismissing complaint. Plaintiff appeals.

REVERSED and new trial granted.

Hurd & Hurd of Salt Lake City, for appellant.

J. W. Ensign and R. A. McBroom both of Salt Lake City, for respondent.

APPELLANT'S POINTS.

The Court erred in sustaining the objections of defendant's

* Miller v. Livingstone, 31 Utah, 435, 88 Pac. 338.

Appeal from Third District.

counsel to the testimony of Simon Grieve as to conversations had with the deceased; or as to matters equally within the knowledge of the witness and said deceased. Miller v. Livingston, 31 Utah, 415.

The rule is well settled that a witness cannot be permitted to give an opinion upon the facts in issue. Swan v. Railroad Company, 41 Utah, 518.

RESPONDENT'S POINTS.

If one party to the original transaction is precluded from testifying by death, insanity or other mental disability, the other party is not entitled to the undue advantage of giving his own uncontradicted and unexplained account of the transaction. R. G. W. Ry. Co. v. Utah Nursery Co., 25 Utah, 192.

THURMAN, J.

Plaintiff, as special administrator of the estate of Helen R. A. Grieve, deceased, brought this action to set aside a deed made by his intestate to the defendant. It is alleged in the complaint that deceased at the time of the execution of the deed, February 18, 1916, was eighty-one years of age, feeble in mind and body, had been for many years subject to epileptic fits, and at the time mentioned was nervous, weak, sick, childish, and not of disposing mind, and was unduly influenced and prejudiced against her two sons, plaintiff and John R. Grieve, and also her grandson Frank Howard; that said. deed was procured by fraud, circumvention, and undue influence practiced upon deceased by defendant, or some one in his behalf, and that there was no consideration for the deed.

Defendant, by his answer, admitted the execution of the deed and formal matters, but denied the remaining allegations of the complaint.

The case was tried to the court. A jury was impaneled as advisory to the court, and special issues submitted for their consideration relating to the physical and mental condition of

Grieve v. Howard, 54 Utah 225.

the deceased and the question of undue influence used in procuring the deed. The jury found the issues for the defendant. The court adopted the findings, made conclusions of law thereon, and entered judgment dismissing the complaint. Plaintiff appeals, and assigns as error the exclusion of certain testimony, the admission of nonexpert evidence, and letters and documents irrelevant and immaterial.

Plaintiff called as a witness Dr. J. N. Harrison, who qualified as a medical expert, and also testified he had known the deceased, Helen R. A. Grieve, for seventeen or eighteen years, and during all of said time had been her physician; that her physical condition had not been good; that her mental condition varied; that she had her peculiarities during all of the time he had known her; that if the subject was religion she spoke with a great deal of feeling; that she had her peculiar ideas of life, and also upon other subjects, especially astrology. After testifying generally as to her feebleness of mind, advanced age, and physical condition down to the time of her death, the following questions were propounded by appellant, all of which were objected to by respondent:

"(1) Probably you didn't understand my question, Doctor. Now, I will say this, Do you know her mental condition? Or what was her mental state, say, from October, 1915, up to and including February, 1916?

"(2) What peculiarities did you notice, Doctor, with reference to Mrs. Grieve, prior to, for a year prior to, February 18, 1916? "(3) Doctor, the ailment of Mrs. Helen R. A. Grieve that you have described, what effect did that have upon her physical condition?

"(4) Did the deceased talk to you rationally or irrationally concerning astrology or any other subjects during the period of one year previous to February, 1916?

"(5) Did you observe, Doctor, in your treatments and visits to Mrs. Grieve, any symptoms of melancholia?

"(6) Doctor, you may state whether or not in your judgment the deceased was in such an enfeebled condition of body and mind on or about the 18th day of February, 1916, and for a couple of months prior to that time, that she might have been unduly influenced, wrongfully prejudiced, by the assertions of persons having exclusive control over her, to such an extent that she would erroneously act contrary to her own judgment, and be materially inclined to do things that she would not do if left to her own