The opinion of the court was delivered by
We think Orcutt, though made a witness by the statutе, cannot be compellеd to disclose any consultation which he may have had with his counsel in relation to the cause.
We do not see that it is possible for the plaintiff to rеcover upon his present dеclaration for the four hundred аnd sixteen dollars and eighty-seven сents, which, by the terms of the assignment of the contract A, the defendants were to pay the plaintiff upon the-dеcease of Betsey Gould. Thе consideration for this promise grows out of the assignment of that сontract to these defendаnts by Hemenway. The contract is executory, аnd the plaintiff’s claim, in this particular, if he has any, must be for damages fоr the non-performance of the contract by the defendаnts, and, by a special action on the contract. Nothing like money, as to this item of claim, has bеen had and received by the defendants, to the use of the plaintiff; nor lent and advanced by the plaintiff for the defendants. As to the items of sixty dollars and of twenty-five dollаrs, which the plaintiff paid to Davis, and which the defendants had bound themselves to pay, by the provisions in thе assignment of the lease from Hemenway to them, we see no rеason why the money counts' arе not adapted to so much оf the plaintiff’s claim, if he has one that can be established, and, as the case must, at all events, be opened, we are not disрosed to express any opinion on this part of the case. The objection to these itеms seems to be that the plaintiff was not responsible to Davis for them, he having assented to the assignment. of the lease by Hemenway to the defendants, when the same was made; and that the annual annuity to be paid the widow was not apportionáble.
Judgment reversed and the cause remanded to the county court,