5 S.E.2d 352 | Ga. | 1939
1. In a suit between an attorney and his client concerning the contract of employment, wherein the client charges that the execution of the contract was induced by fraudulent representations on the part of the attorney, the attorney should be allowed to testify to matters which might otherwise be confidential, subject, of course, to the usual requirement of materiality.
2. It can not be said as a matter of law that under the provisions of the contract the plaintiff was entitled to the compensation therein provided only in the event there was a recovery by him of the defendant's share in the estate of her deceased father by a suit therefor.
3. The evidence did not demand a finding that the plaintiff in procuring the power and the contract of employment was guilty of a violation of the terms of the Code, § 9-9901, with reference to barratry, and accordingly that the contracts were void. The evidence supported the verdict, and it was not erroneous for any reason assigned. The judge did not err in overruling the motion for new trial.
1. It appears from the evidence that Marie Daughtry (hereinafter referred to as the defendant) was a resident of Philadelphia, Pennsylvania, at the time the power of attorney and the contract providing for compensation for services to be rendered thereunder were executed, and that the contracts were executed in New York City. The special grounds of the motion for new trial relate to the admission of testimony on behalf of Cobb (hereinafter referred to as the plaintiff), to the general effect that the "moving consideration" to the defendant in the execution of the contracts was that for certain reasons she did not desire to return to the State of Georgia, and accordingly desired to have some one here to represent her and receive any moneys due to her, and perform for her any other acts necessary in connection with the due administration of her father's estate. This testimony was given by Cobb and by G. C. Dekle and A. M. Deal. The court permitted Cobb to testify that on the occasion of the execution of the contracts the defendant stated to him that she wanted to employ him to represent her, because she did not desire to and would not return to Georgia, "even if her share of the estate was $50,000," and that the defendant related to him her reasons for not desiring to come to Georgia. The court refused to allow Cobb to state the reasons given by the defendant. It appears that plaintiff and defendant were indicted for the murder of Mr. Daughtry. G. C. Dekle and Albert M. Deal, attorneys, were employed by Cobb to represent him in resisting the criminal charge. Dekle was sent by Cobb to Philadelphia to accompany the defendant, Marie Daughtry, to Georgia. Dekle testified that she stated to him that she had not desired to return to Georgia, and gave him her reasons. The judge permitted this witness to go fully into the matter. His testimony was as follows: "Further pertaining to my testimony with reference to Miss Marie employing Mr. Cobb and signing that contract and power of attorney, Miss Marie gave me a reason why she did that, and why she did not want to return to Georgia; she said she did not want to return, because of the circumstances under which she left Screven County. She stated that she left with a colored man by the name of John Lipsey, and lived with him, and went ahead to say that in New York she was forced to marry him, and that a lot of people knew about her going away with him, and that she would not ever come back if her share in the estate had been fifty thousand dollars. *116 I saw that [her] daughter, Helen. She is a person of color. Her daughter's husband is a mulatto." A. M. Deal testified that the defendant told him "that she employed Mr. Cobb, and gave him the power of attorney and this contract for the reason that she did not want to come back to Georgia at all."
In an amendment the plaintiff pleaded, in substance, that one of the considerations moving to the defendant in the execution of the contracts, was his "promise and agreement . . to keep inviolate all matters and things connected with her private life, which she committed to him as her reasons for remaining away from Georgia." This promise of secrecy covered, according to his pleading, "her place of residence and with whom she lived and had theretofore lived for a period of approximately seventeen years." Thus the plaintiff alleged that the defendant exacted from him as one of the considerations moving to her in the execution of the contracts, a promise not to disclose certain of her private affairs which she had committed to him. In the evidence objected to, however, there is no mention of any promise of secrecy, but it is merely stated that by reason of the existence of these private affairs the defendant did not desire to return to Georgia, and that this was the "moving consideration" to her in the execution of the contracts. It was not testified that this was made a part of the agreement. The pleadings actually refer to a consideration of the contract, while the evidence gives her motive in executing them. In objecting to the testimony of Cobb, counsel for the defendant called the attention of the court to the fact that by an amendment the plaintiff alleged "that a consideration of the contract of employment was that an attorney was to keep secret information that he obtained from his client," and urged that since, "as a matter of law and as a matter of ethics of the profession, he [Cobb] was bound to keep it a secret anyhow," the promise to do so did not constitute a good consideration, and that the court should not permit Cobb to divulge any of these matters which were committed to him by the defendant, since it is provided in the Code, § 38-1605, that "No attorney shall be competent or compellable to testify, for or against his client, to any matter or thing, knowledge of which he may have acquired from his client, by virtue of his relations as attorney, or by reason of the anticipated employment of him as attorney." Concerning the testimony of Mr. Dekle and Mr. Deal it *117 was urged that they were attorneys and agents of Cobb, who was attorney for the defendant, and that communications made by her to them should, in principle, fall under the prohibition of the Code section.
Under the Code rule, which is declaratory of the rule that existed at common law (Stone v. Minter,
The present case constituted a controversy between an attorney and a client. The controversy related directly to the contract of employment. The defendant resisted the plaintiff's claim for damages on account of her alleged breach of the contract, on the ground that it was obtained by fraud. She testified that plaintiff represented to her that her father left a will in which she was left $1.00; that he was in a position to destroy the will; and that it *118
would be necessary for her to have a lawyer to obtain her share in the estate, because the family was unwilling for her to have any part of the estate, and there would be litigation and much expense. She further testified that all of these representations were false, in that her father left no will, and there was no necessity for her to have a lawyer to represent her in connection with her share of the estate; and that these false representations of the plaintiff induced her to execute the contract and power. This was a serious charge against the plaintiff, and if true would render the contract void. Subject to the usual requirement of materiality, it seems clear that in such case the attorney should be allowed to testify as to matters which might otherwise be confidential under the provisions of the Code. The defendant bared her theory of the transaction between them, and she is in no position to assert that the plaintiff should not be allowed to relate his. "Whenever the disclosure of a communication, otherwise privileged, becomes necessary to the protection of the attorney's own rights, he is released from those obligations of secrecy which the law places upon him. . . Thus the rule as to privilege has no application where the client, in an action against the attorney, charges negligence or malpractice, or fraud, or other professional misconduct. In such cases it would be a manifest injustice to allow the client to take advantage of the rule of privilege to the prejudice of his attorney. 1 Thornton on Attorneys at Law, § 127, and cit. See Dewberry v. Bank of Standing Rock,
2. In the contract it was provided that "In consideration of the undertakings of the party of the second part . . party of *119
the first part agrees to allow as compensation to party of the second part one half of any and all sums of money or property of any and every kind or description which party of first part shall or may recover or have allowed and paid to her and her interest or share in and to said estate." It is insisted on behalf of the defendant that under this provision Cobb was entitled to compensation only in the event there was a recovery by him of the defendant's share of the estate; and that since it affirmatively appeared that there was no necessity for a suit to obtain her share of the estate, he could not recover thereunder. We can not agree to this construction of the provision. The cardinal rule in the construction of contracts "is to ascertain the intention of the parties." Code, § 20-702. While counsel for defendant in his brief repeatedly refers to the contract as providing compensation to the plaintiff in one half of the sum which the plaintiff
"shall or may recover or have allowed and paid to her," it must be noted that the contract actually provides for payment of one half the sum which the defendant shall recover, etc. The word "recover" generally denotes, as contended by counsel for the defendant, the restoration of a right by a solemn judgment of a court of justice (Hoover v. Clark,
3. We do not deem it necessary to elaborate on headnote 3.
Judgment affirmed. All the Justices concur.