65 Ga. 580 | Ga. | 1880
This action was brought by Freeman, executor of Neal, against Bigham, on. an indorsement of a promissory note whereby the indorser limited his liability in the following words; “ Indorsed second instance only, and this note to be sued when due, without any delay, if not promptly paid.”
The defendant pleaded the statute of limitations and a release by the plaintiff’s testator in consideration that he, the defendant, being an attorney at law, would sue the note to judgment without charging any fee therefor. The case went to trial on these issues, and the jury found a verdict for the defendant on such plea; whereupon the plaintiff made a motion for a new trial on numei'ous. grounds therein set out, and found in the repoi't of the case.
1. The testimony is sufficient to support a verdict on each plea on either side, in our view of it, and must stand unless, in the ruling of the court on the testimony or in the chax'ge to the jux-y, there be such erx-or as requix'es the case to be sent back for a trial de novo.
2. The plea of the statute of limitations was first filed, and some term or two thereafter the release was pleaded. It is unfortunate that the parties could not both have been heard, and brought face to face with each other on the real merits of the controversy; but the voice of one has been hushed in death, and the rule of law, as of justice, will not suffer the other to be heard in respect to any contract or conversation which passed between the two, and had reference to the cause of action and the issue between them. Anybody else may tell all that both said when together, or that either said against his interest. But death having silenced one, the law silences the other on the great principle that equality is equity.
We think that on the issue of the release, this principle was violated in permitting the defendant to swear in respect to a message which he testified that Mr. Freeman delivered to him from the plaintiff. That testimony is set out in the fourteenth ground of the motion, and is as follows : “ Freeman brought the note to me, to my office, early in January, 1861, for suit; after I had written the ordinary receipt for collection, Freeman reminded me of a contract I had made with Mr. Neal as to suing the note to judgment for the release of my liability as indorser, and requested me to add the words, ‘ I having agreed to sue the same without charge for professional services,’ as he would like to have the receipt in accordance with Mr. Neal’s instructions.”
It is true that Freeman was living, and could confront
3. Sterling was no party to the indorsement. Essentially it is a separate contract from his own as the maker of the note, and he was competent to testify in regard to all that transpired between Neal and Bigham. He has no interest in .the issue. Before, and since the evidence act, he would be competent—before, because he has no interest, having the note to pay, if ever he is able, either to Neal or to Bigham, and to Neal sooner than to Big-ham, because Neal has already a judgment against him, and Bigham has none; and since the evidence act, because he is no party to the contract or cause of action, which is the indorsement. And every indorsement is a new contract. 2 Kelly, 158. There seems to be some doubt according to his testimony, whetner this contract of release was made before or after the indorsement; if before, it is merged, or ought to have been, in the written contract, and that cannot be varied or added to by anything which was part of the original undertaking; if subsequent, it is a valid, separate agreement for a valuable consideration, to-wit, professional services, which have been performed, and the jury should be fully instructed in respect to the law bearing thereon. The testimony ought to go in, but the jury should be instructed to pass on the question whether this agreement to release the indorser was made before or after the contract of indorsement. If made before, of course it would have been inserted in the writing in the very nature of things; if afterwards, it would not, or at least it need not, have been done.
4. We think that the letters objected to were properly admitted. It is true that they were on the subject of compromise, but compromise of what? Not of Bigham’s liability as indorser, but of Sterling’s indebtedness as maker. Bigham was the counsel of Neal and advising him of Sterling’s situation, and recommending him to
5. Indeed, in our view of the statute of limitations, these letters are of the utmost importance, and absolutely necessary to elucidate that issue. A confidential relation subsisted between these parties. Bigham was counsel for Neal. After he had sued the makers of this note to judgment, he was employed to prosecute that judgment in execution, and to make the money out of the makers. This devolved on him the duty to advise his client of the status of defendants'—the makers’ property, of the prospects of collection—of the record evidence of their estate, and of their liability—and his bona fides in all this trust confided to him has much to do with the plea of the statute of limitations under the pecnliar relations between the two. The issue on the statute, it is true, is distinct from that on the release. If there was a release, the statute is unnecessary. If Bigham is liable in the second instance, did plaintiff sue in six years after this liability was made apparent to him? That is the issue on the statute. The court undoubtedly gave the law correctly as to what proof would be sufficient to show the insol
The relation of attorney and client is eminently confidential. It approximates that of guardian and ward, in respect to the superior knowledge of the attorney touching the client’s interest, which he is commissioned and paid to watch and to guard. It is that of trustee and cestui que trust, and the former must have no personal interest antagonistic to that of the latter; nor can he so mix the two as not readily to distinguish between them ; if he does, he must suffer rather than his confiding client. If their interests collide, his must yield ; and for this reason, it is dangerous that he assume, or circumstances force him into the double relation of attorney for, and liability in the second instance to, the same person in the same transaction. In one case, this court went so far as to hold that an attorney who was liable as security on the same paper with his principal, and who acted with that
That case certainly went far; as the relation of client and attorney did not exist between the creditor and the surety, but between the principal debtor and the surety ; but it serves to illustrate the stern, though equitable and beautiful morality with which the exponents of our law, of the same brotherhood, would enrobe the common profession.
(a) . The testimony of Bigham to the sayings of Neal communicated by Freeman, improperly admitted, as we have ruled on the issue of the release, also affect this view of the statute of limitations. For if Bigham was released as indorser when he sued the note to judgment against the makers, he did not occupy the double relation of debtor and attorney; but was only the attorney of Neal free from all double motive of action, and every fact, therefore, which tended to show his release, necessarily showed also his bona fides and single eye in all his communications to his client.
(b) . It is to be observed that the presiding judge, whilst he charges the jury that if the plaintiff, by ordinary diligence, could have discovered the insolvency of the makers more than six years before the action was brought against Bigham, his right of action was barred, yet wholly failed to allude to any obligation on the part of Bigham to use this diligence for Neal, and to communicate what he had
6. We cannot say that the letter of the eighth of September, 1876, was admissible. It was written for a compromise between Bigham and Freeman, by the former, after suit, and no expression in it looking to that end should have gone to the jury. The court was right to withhold it.
The case in 54 Ga., was properly ruled as inadmissible to go to the jury.
7. There was no error in refusing to postpone this case until the claim case of Neal vs. Sterling had been tried. Nor do we find that there was error in charging that the relation of client and attorney ceased while Judge Bigham was on the bench. And, generally, the record discloses no error, certainly no material error, other than those indicated above.
The judgment is reversed because the court erred in admitting the testimony of Bigham as to the sayings of Neal reported to him by Freeman, as alleged, because Neal was dead; and in failing to charge in respect to the statute of limitations, the obligation on Bigham’s part to inquire and communicate the status of the makers of the note to his client, Neal, in modification of the charge which put on Neal the duty to inquire and act to prevent the bar of the statute.
Judgment reversed.