128 Mo. App. 476 | Mo. Ct. App. | 1907
In the fall of 1903, Thomas R. Pullis and Thomas G-. Scott were looking for a house, in the city of St. Louis, for amusement purposes, with the view of producing winter circuses and other amusements during the Louisiana Purchase Exposition. They were discovered by the defendant, William Stevenson, making an examination of No. 3218 Olive street. Stevenson, inquired what their business was, and why they were
The present action was commenced before a justice of the peace and was, in due course, appealed to the circuit court, where on a trial ele novo plaintiffs were forced to take a nonsuit. Their motion to set aside the non-suit proved of no -avail and they appealed to this court.
The ground upon which plaintiffs seek to hold defendant for the account sued upon, is that he was a partner with Pullis and Scott in the amusement enterprise. Plaintiffs proved the account and stated as an excuse for not making defendant a party to the suit against Pullis and Scott, that they did not know at that time he was a partner, and did not find it out until after judgment was rendered. Plaintiffs introduced Pullis as.a witness, who testified in respect to the partnership, that several conferences were had by himself and Scott with defendant, in regard to the building and the amusement enterprise; that defendant told them he owned the building but had put the title in the Empire Building Company to protect it from- his creditors. Witness also said: “We talked about the amusement feature, and we
2. Clinton L. Caldwell, an attorney at law, who testified he had been defendant’s attorney from 1901 to
“Mr. Pirkey: When did you quit acting as attorney for Mr. Stevenson? A. In August, 1905..
“Q. Well, after this work was done, this painting and work on that building, did Mr. Stevenson have any conversation with you in regard to it?
“Mr. Dillon: I object. That doesn’t grow out of the cross-examination. It is part of the examination in chief, certainly, if it is any part at all.
“The Court: It is part of the examination in chief, if at all; but if counsel has omitted it for any reason, he may ask it.
“Mr. Pirkey: Yes, sir, I want to take that up now.
“ (Question read.)
“The Court: asked him before. I don’t remember that having been You may ask the question.
“A. Yes, sir,
“Mr. Pirkey: tion? What did he say in that conversa-
“Mr. Dillon: case again. I object to opening up this whole
“The Court: Well, if the objection is put upon the ground, Judge, that it is merely permitting him to open that branch of the case again, it will be overruled, giving you an opportunity, of course, to cross-examine.
“Mr. Pirkey: Answer the question.
“(Question read.)
“A. I take it that is a privileged communication, and I decline to answer it, with all due respect to the court.
“Mr. Dillon: We make the objection on behalf*481 of Mr. Stevenson that it is a privileged communication between attorney and client.
“Objection sustained. To which ruling of the court plaintiffs then and there duly excepted.
“Mr. Pirkey: Did he say anything to you in regard to what he would do -about paying the bill at the time the work was being done?
“Same objection and ruling. To which ruling of the court plaintiffs then and there duly excepted.”
Plaintiffs attempted to make an offer of what they expected to prove by the witness. In view of Pullis’ evidence in respect to defendant’s statements to him about the ownership of the property, and the circumstances under which the work was done by plaintiffs, we think it ivas competent to show, as a matter of fact, that defendant was the true owner of the property; and also his statements, if against his interest in regard to the work being done on the building. What the witness would have testified in regard to these matters is not in the record for the reason the court refused to permit plaintiffs to state what they expected to prove. This was error; and it was error to exclude the evidence on the ground that the communications were confidential. The witness, at the threshold, disclosed his relations to Stevenson and claimed Stevenson’s communications were privileged because made to witness as his attorney. The court properly ruled that it was for Stevenson, not his attorney, to claim the privilege. Stevenson .declined to make the claim, and Caldwell’s examination and cross-examination, covering ten pages of the printed record, proceeded before the objection was made. The general rule is, that the right to object to any witness as incompetent is waived unless the objection is taken at the first opportunity. A party cannot take the benefit of the evidence of an incompetent witness and at the same time object to evidence that is against
For errors noted the judgment is reversed and the cause remanded.