98 Ga. 106 | Ga. | 1896
The official report states the facts necessary to an understanding of the questions made.
1. Objection was made to the competency of Samuel Barnett, who was offered as a witness by the plaintiff in the present case; it being contended that he was disqualified upon the twofold ground: (1) Because, of his agency for the lender (the plaintiff in the present ease) in effecting the loan out of which the litigation arose, the borrower, the defendant, being insane. (2) Because of interest in the result of the suit, the party against whom it was offered being at the time insane.
The witness was competent unless the statute provided the contrary. The statutory provision relied on to exclude him as a witness, upon the ground of disqualification urged in the objection just stated, is as follows: “No agent or attorney at law of the surviving or sane party at the time of the transaction testified about, shall be allowed to testify in favor of surviving or sane party under circumstances whero the principal, a party to the cause, could not testify; nor can a surviving party or agent testify in his own favor, or in favor of a surviving or sane party, as to transactions or communications with a deceased or insane agent, under circumstances where such witness would be incompetent if deceased agent had been principal.” See Acts 1893, p. 51, par. (e).
It vdll be seen by reference to the record, that the witness Barnett, at the time the facts came to his knowledge concerning which he was called to testify, was not the agent of the lender, but in that transaction was the agent of the borrower. The borrower had become insane. The statute prohibits one who is the attorney at law or agent of the surviving or sane party at the time of the transaction testified about, from becoming a witness against the adverse party, but inasmuch as the witness objected to was not the agent of the “surviving or sane party,” he does not fall within the class of persons who are disqualified by the statute.
2. Was the witness disqualified by reason of his interest in the result of the litigation? He was the attorney at law representing the lender. The contract sued upon stipulated for the payment of ten per cent., in addition to principal and interest, for attorney’s fees in the event of enforced collection. Did the attorney, under the arrangement between himself and his client, have an interest in the judgment separate'from that of his client? To whom did the money primarily belong in the event of its collection? If the fee of the attorney was contingent upon collection, or its payment dependent upon his realizing upon the stipulation for the payment of attorney’s fees, he would have such an