43 Mo. App. 625 | Mo. Ct. App. | 1891
This is an action of trespass on account of the seizure of property claimed by plaintiff. The Hunters were plaintiffs in an attachment suit against one Hamilton, and Walkup is the sheriff who seized the property under the writ of attachment. A trial in the circuit court resulted in a judgment for defendants, and plaintiff brings the case here. The facts of the case as disclosed-by the statement of plaintiff are very much involved, and it is to be regretted that we are not aided by a brief from the defendants. We will state, in a general way, that it appears that plaintiff claims to be the mortgagee, of Hamilton in two mortgages, that he was in possession of the mortgaged
We are of the opinion that the testimony was admissible. Professional communications between attorney and client are protected from motives of public policy. It is regarded that greater injury or mischief would follow its .admission than ensues from its rejection. “If such communications were not protected, no man * * * would dare to consult a professional adviser, * * * and no man could safely come into a court, either to obtain redress, or to defend himself.” 1 Greenl. Ev., sec. 238. These communications are regarded as private in their nature and are held inviolable because they are confidential. Therefore, the rule will not apply where the transaction shows the matter was not private and could not, in any sense, be termed the subject of a confidential disclosure. 1 Thompson Trials, sec. 296; 1 Greenl. Ev., sec. 144.
II. The court was asked, but refused, to instruct the jury that if the Hall note was considered and discussed at the settlement it was presumed that it was included in the settlement unless the contrary was made to appeal’. Such instructions should have been given. Perry v. Roberts, 17 Mo. 36; Wade v. Hardy, 75 Mo. 394.
III. One of the notes was claimed to have been misdescribed in the mortgage. If this was true, if the mortgage was intended to cover the note in evidence, but by mistake or omission it was misdescribed, it is nevertheless proper to show that fact, and the mortgage will yet protect the note intended. Scott v. Bailey, 23 Mo. 140; Williams v. Bank, 72 Mo. 292.
This rule of law, I conceive, will apply as against an attaching creditor of the mortgagor when the difference in the amount of the note intended and another one described is not substantial.
The cause in other respects seems to have been properly tried.
The judgment is reversed, and the cause is remanded.