108 Wis. 497 | Wis. | 1901
Two interesting and important questions are presented which go to the ultimate question of liability and obviate necessity for considering other assignments of error which reach only to the correctness of the trial and procedure. Those questions are: First, the existence of any covenant by defendant for plaintiff’s quiet enjoyment of the. demised premises; second, the right of defendant to prove,, by testimony of plaintiff’s former attorney, the giving to him of authority to make a settlement of plaintiff’s demand,, which lie did in fact make.
1. At common law, as is elementary, from the ordinary words of grant or demise in an instrument relating to real estate were implied certain covenants; among others, that the grantor had the right to convey, and that he would protect the grantee from lawful interference by others in enjoying the demised premises. This is called a covenant for quiet enjoyment. Eldred v. Leahy, 31 Wis. 546. Our statute, however (sec. 2204, Stats. 1898), reversed the rule of the common law, and provided that “ no covenant shall be implied in any conveyance of real estate.” This would seem final but for certain decisions in New York, whence we took the words above quoted, and but for the declaration very recently made by this court in Shaft v. Carey, 107 Wis. 273, that: “The statute (sec. 2204, Stats. 1898) to the effect that no covenant shall be implied in any conveyance of real estate, whether such conveyance contains special covenants or not, does not apply to leasehold estates. This is the rule now established in New York, from which our statute was taken, although a different conclusion was at first arrived at. New York v. Mabie, 13 N. Y. 151.”
On examining the authority there cited, we find it to relate to a lease for only three years, but to adopt the reason
Thus it is by no means clear that Tone v. Brace and New York v. Mabie correctly declare the law, even of New York, as to their statute. Whether they do or not, however, the views expressed in them are in direct conflict with sec. 2242 of our statutes, which clearly includes within thé term “ conveyance ” all leases for more than three years, and has been so treated whenever referred to. Eldred v. Leahy, 31 Wis. 546; Topping v. Parish, 96 Wis. 378, 382. It provides: “ The term ‘ conveyance,5 as used in this chapter, shall be construed to embrace every instrument in writing by which any estate or interest in real estate is created, aliened, mort
Considering our own statute, then, as an original proposition, there is no ambiguity. The words and the intent of the legislature are clear to the effect that no covenant shall be implied in any conveyance of real estate, and that a lease for more than three years is such a conveyance. This court cannot properly change or ignore that legislation. Our declaration in Shaft v. Carey, 107 Wis. 273, above quoted, if adhered to, would have that effect, and we hasten to avail ourselves of this early opportunity to withdraw it; the more readily because in the few months since it was uttered it cannot have become so established as a rule of property as to affect in very considerable degree vested rights; certainly not the rights of the parties now under consideration, for they had become fully settled — nay, had been tried in the superior court — before the decision of Shaft v. Carey. The result reached in that case did not necessarily depend on the rule of law so announced, for that was not an action to recover for breach of any implied covenant, but was a suit to enjoin one holding under and in the right of the lessor from doing acts invasive of rights granted by the lease itself. The duty of the lessor to refrain from voluntarily and unnecessarily interfering with
We hold, therefore, that in the lease from defendant to plaintiff there was no implied covenant to defend the latter from interruption of his use of a portion of the premises by the acts of Lange upon his adjoining premises, under his superior title, and that plaintiff cannot maintain his action for damages founded upon breach of such covenant. The refusal of instructions requested by defendant substantially to this effect was error necessitating reversal.
2. The proposition advanced by respondent and adopted by the trial court, that one, after fully authorizing his attorney, as his agent, to enter into contract with a third party, and after such authority has been executed and relied on, may effectively nullify his own and his duly authorized agent’s act by closing the attorney’s mouth as to the giving of such authority, is most startling. A perilous facility of fraud and wrong, both upon the attorney and the third party, would result. The attorney who, on his client’s authority, contracts in his behalf, pledges his reputation and integrity that he binds his client. The third party may well rely on the assurance of a reputable lawyer that he has authority in fact, though such assurance be given only by implication from the doing of the act itself. It is with gratification, therefore, that we find overwhelming weight of authority against the position assumed by the court below, both in states where the privilege protecting communications with attorneys is still regulated by the common law and in those where it is controlled by statute, as in Wisconsin. A few of the more direct decisions are the following: Burnside v. Terry, 51 Ga. 186; Rochester Bank v. Suydam,
Our statute (sec. 4076) on this subject is adopted from New York, and has been declared to be but re-enactment of the common law. Hurlburt v. Hurlburt, 128 N. Y. 420, 424; State ex rel. Hardy v. Gleason, 19 Oreg. 159, 162. It provides: “An attorney or counselor at law shall not be allowed to disclose a communication made by his client to him or his advice given thereon in the course of his professional employment.”
The rule of the common law and of this statute within its proper limits is most salutary. It is essential to the ends of justice that clients should be safe in confiding to their counsel the most secret facts, and to receive advice and advocacy in the light thereof without peril of publicity. Disclosures made to this end should be as secret and inviolable as if the facts had remained in the knowledge of the client alone. Bruley v. Garvin, 105 Wis. 625. But there are necessary limits to the broad rule that all communications between him who is client and him who is attorney are thus privileged. One limitation bearing upon the question in hand grows out of the words of the statute itself. To be privileged, the communications to the attorney must have been in the course of his professional employment. The field of services performed by men who are attorneys at law and of the transactions between them and those whom they serve
One of the earliest cases recognizing this limitation is Jeanes v. Fridenberg, 3 Pa. Law J. 65, where the court, by Shakswood, J., after speaking of certain limitations where the relation was clearly professional, said: “ These are all cases in which the attorney is but a witness, but there is a class which stands upon higher and still clearer and more unequivocal ground, where the line is distinctly and broadly marked; that is, where the attorney is himself a party to the transaction or agreement which he is called upon to disclose. If the privilege were suffered to be applied to such cases, a wide door would be opened for the successful perpetration of fraud and crime. Attorneys would be selected as the agents or trustees wherever a cover of darkness would be needed, and, though but few might be found base enough to prostitute their high and honorable profession, yet the character of the whole bar would be injured and degraded by the conduct of those few.” In that case the attorney was held obliged to testify to the receipt from his client of moneys in trust to pay to certain creditors. In Rochester Bank v. Suydam, 5 How. Pr. 254, the attorney, having indorsed commercial paper of his client and stated at the time of his indorsement that he held in his possession certain property as security, was held obliged to disclose the dealings with his client as to the transfer to him of such property, and what he had done with it, on the ground, as
In the light of this principle and these holdings it would seem that the transaction as to which Mr. Felker was interrogated fell clearly outside of a proper limit of communications to the attorney in the course of his professional employment. An instruction to one, though an attorney, to perform an act as agent, is a contract. The very fact that, as shown by authorities cited by respondent, such authority cannot be presumed from the mere retainer as an attorney
Another limitation upon the privilege of secrecy in communications between attorney and client arises from the fact that such privilege is personal, and may be waived either by express words or by conduct. McMasters v. Scriven, 85 Wis. 162, 167. By a great number of authorities, only a few of which are cited above, it has been held that no privilege of secrecy exists over communications which the attorney, for his own protection or the protection of those with whom he deals, needs to divulge, or which were made to him for the express purpose of being communicated to another or of being made public, for the reason that from the very nature of the communications and the purpose with which they are made the conclusion is irresistible that the client intended to authorize the attorney to communicate them, and waived his privilege to have them preserved in secrecy.
In Burnside v. Terry, 51 Ga. 186, where the agreement accompanying a conveyance was made through the medium of Terry’s attorney, and he was called to prove his authority, the court said: “If the fact of the attorney’s having this au
In Bartlett v. Bunn, 56 Hun, 507, where the defense was ■that money had been paid out by defendant on the direction ■of plaintiff, given through the medium of plaintiff’s attorney, the attorney was required to give evidence of the communication of such directions to him by his client. The ■court said, after stating the general rule as to privileged communications: “But this prohibition may be waived by the client, and, when the communication is made for the purpose of its publication or communication to another, it necessarily loses its privileged character. It follows, therefore, that when, from the very nature of the communication, it was designed by the author for another, and to be communicated to such other, it loses its character as privileged.” In Rosseau v. Bleau, 131 N. Y. 177, where it was claimed "that a deed had been delivered by the client to his attorney for a third person, the attorney was held competent and re■quired to testify to the instructions given him by his client. The court said: “ Such communication from client to attorney is not within the prohibition of the section of the Code, •and the attorney was always competent to prove it, as from its very nature it was not made in professional confidence, nor intended to be confidential, but, on the contrary, imparted to another. It has never been held that a verbal inessage communicated from client to attorney to be delivered to a third person cannot be proved in behalf of the person to whom the message was sent by the testimony of the attorney. . . . When the deceased commissioned the witness to deliver the deed to the grantee named therein, ■she necessarily waived all the objection that she might otherwise make to proof of that fact by the attorney.” It is upon this same principle of waiver, inferred from the purpose of publication or communication to another, that attorneys who, at the request of grantors or testators, become subscribing
The transaction here between Eelker and plaintiff, if it took place, would fall obviously within all of the reasons of the cases above quoted to justify inference of an implied authority to him to testify with reference thereto, and waiver ■of any privilege of secrecy. The attorney’s own interests are vitally affected, for, if he may not prove that he had authority to settle the claim of plaintiff against the defendant, and to receive from the latter money in consideration thereof, he is placed in an attitude of fraud, and his standing and repute in the business world must suffer. Again, the irresistible effect of the granting of authority to one’s attorney to deal with a third person is to authorize that attorney to communicate the fact, whether he does it by words or solely by executing the authority. Indeed, he cannot perform the service delegated to him without so communicating. The rule, therefore, outlined by the above-cited authorities, that an attorney is not restrained by any duty of confidence to his client to withhold the fact that he has received from that client authority as an agent to deal with a third person, certainly after the authority has been acted on, is founded upon the soundest reason, and is absolutely nécessary to prevent the privilege of secrecy from being made an implement of injustice and fraud. The ruling of the court that Mr. Eelker could not testify as to whether authority was given him by his client to make the written settlement which he did make was error.
Even more obviously erroneous was the ruling that the plaintiff was protected by the same privilege from answering the question whether he received from Felker, Goldberg & Felker the money paid them by defendant upon this settlement. State ex rel. Hardy v. Gleason, 19 Oreg. 159, 162; Williams Bros. v. Young, 46 Iowa, 140, 143; C. Au tman & Co. v. Ritter, 81 Wis. 395.
By the Oourt.— Judgment reversed, and cause remanded for a new trial.