117 Ky. 182 | Ky. Ct. App. | 1903
Opinion of the court by
Affirming.
Joseph Denunzio, died in September, 1894, possessed of a very large estate. In June, 1878, the appellee, Charles Scholtz, who was then quite young, was employed by Denunzio, and continued in his service until his death. So faithfully did he serve his employer that he was advanced from time to time, until he was practically in charge of the business. In September, 1893, Denunzio was in bad health, and contemplated- a trip to Hot Springs, Ark. Before going he conceived the idea of separating his large fruit business, managed by Scholtz, from his other business. So he concluded to organize a corporation, and its capital stock was fixed at $30,000. The stock was paid for by the assets of the fruit business. Previous to that time Scholtz in lieu of a salary was given one-fourth of the profits of the business. There was issued to Scholtz, $10,000 of the stock of the corporation. At the same time Denunzio took from Scholtz five notes, of $2,000 each, without interest, and retained the stock which had been issued in Scholtz’s name as collateral security. The notes which Scholtz gave were not found among the assets of the estate, neither was the certificate of stock. This action was brought by the receiver, as in an action on lost notes. The defense to it is that the notes and certificate of stock were given by Denunzio to Scholtz inter vivos.
It is insisted on behalf of the appellant that these facts did not constitute a delivery of the subject-matter of the gift, and therefore the effort to make the gift was ineffectual; that it could only have been done by an assignment or delivery of the notes. Several cases are cited by counsel for appellant, showing that there must be a delivery of the subject-matter of the gift and an acceptance of it. This is the general rule. The mere unexecuted intention to give of itself does not discharge an obligation. While the notes in this case were not hamded to Scholtz, they were destroyedj and the certificate of stock actually delivered to him, with the intention that he should have it free from liability for the indebtedness in its purchase. In Roche v. Georges’ Ex’r., 93 Ky., 609, 14 R., 584, 20 S. W., 1039, the court upheld a gift where the donor told his physician to tell his son Joseph that he wanted a certain note collected and the proceeds given to his sister. In Meriwether v. Morrison, 78 Ky., 572, the gift was upheld where the donor went to his desk, took out the notes, and handed them to a party, telling him to return them to the desk, and at his death deliver them to the party designated as the donee. In Stephenson’s Adm’r v. King, 81 Ky., 425, 5 R., 374, 50 Am. Rep., 173, it was held that a delivery of an inventory to certain property in the possession of
On the trial of the case Aaron Kohn was introduced as a witness for the appellee to prove statements made to him by Denunzio, concerning the gift to appellee. It is urged that his testimony was not competent, because it was the revelation of a confidential communication from a client to his attorney, prohibited by subsection 5, section 606, Civil Code Prac., which reads as follows: “No attorney shall testify concerning a communication made to him in his pro
another ground upon which we prefer to place our decision. The client may, waive the protection of the rule. The waiver may be expressed or implied. We think it is effectual here by implication as the most explicit language
. . . The reason of the rule is in the necessity of secrecy, in order that persons needing professional advice shall be encouraged to disclose freely and without fear the facts upon which that advice shall be given.” In Hall v. Renfro, 3 Mete., 52, the court said: “We are aware of no statute or rule of practice which excludes or renders incompetent as a witness an attorney in behalf of his client. Civil Code, section 670, defines with great exactness amd precision the classes of persons who shall be incompetent to testify, and attorneys are not embraced in either of the classes enumerated, except the fifth, which excludes an attorney concerning any communication made to him by his client, in that relation, or his advice thereon, without the client’s consent. In all other cases an attorney is a competent witness for or against his client. Whether he should or should not testify while the relation subsists is a question of professional propriety, which he alone is to de
The answer does not in express terms say that Scholtz accepted the gift, but in a general way states the gift was made. Besides, it is averred that the notes were destroyed and the stock was delivered to the defendant. The question'was tried as to whether the gift was effectual under the facts we have detailed, and the jury returned a verdict, under proper instructions, for appellee. Without entering into a discussion as to whether the answer was defective, it is sufficient to say the verdict cured it, if the defect existed. In Association v. Richart, 99 Ky., 802, 18 R., 95, 35 S. W., 541, the court held that when a defective pleading states facts sufficiently general to comprehend a fair and reasonable intendment, and there is enough in it to show that the plaintiff had a cause of action, the defect in the pleading will be cured by a verdict.
We are unable to find an error in the admission of testimony for the defendant, or any error in rejecting testimony offered by the plaintiff, which was prejudicial to the rights of the appellant.
Denunzio was the master and Scholtz the servant. Denunzio evidently was a man of strong mind, and managed and controlled his business, and there is not the slightest evidence that Scholtz exercised-any control of him whatever. The evidence simply shows that he was a faithful servant, and had the esteem and confidence of his employer. He was not acting as trustee for Denunzio, nor did he even have possession of the property when it was given tes iiim. The facts do not create a presumption that undue or improper influence was used to obtain the gift.
The judgment is affirmed.