Smith v. Caldwell

22 Mont. 331 | Mont. | 1899

BRANTLY, C. J.

1. Appellant earnestly contends that the evidence is not sufficient to sustain the verdict, and that the court below should have granted a new trial on this ground. As the case must be reversed and a new trial ordered on other grounds, we shall not review the evidence. Upon another trial it may present different aspects, and any suggestion by us in this regard might tend to prejudice the rights of the parties.

2. The defendant in his answer alleges that, from the date of the seizure of the property in controversy until the sale thereof under the execution to satisfy the judgment in the cause of Black against Kelly, the plaintiff had actual knowledge that the property had been seized, but that he allowed it to be sold, and the proceeds to be applied upon the judgment, without giving defendant any notice, or making any claim for it. It is insisted that, by this knowledge and silence on his part, plaintiff is estopped to maintain chis suit for its value.

The court below was requested to instruct the jury that, if they found these facts from the proof, they should find a verdict for defendant. The court refused the instruction. This refusal of -the court to so instruct the jury is assigned as error. The court was right. The facts stated in the answer are not sufficient to constitute a defense by way of estoppel. There is no averment that the plaintiff’s silence in any way induced the defendant to seize or sell the property in controversy. Nor is there any other fact stated which shows that the defendant was in any way deceived or misled by the plaintiff, or that the silence of the plaintiff was designed or intended by him to mislead the defendant.' (Sweetman v. Ramsey, 22 Mont. 323, 56 Pac. 361, and authorities cited; Barnhart v. Fulkerth, 93 Cal. 497, 29 Pac. 50; Bowman v. Cudworth, 31 Cal. 148; 2 Pom. Eq. Jur. Sec. 812; Rice, Ev. pp. 716-719.) Besides, if the defendant wrongfully seized property belonging to plaintiff, and appropriated it to the satisfaction of Black’s claim, he was a trespasser ab initio, and does not stand in the attitude of an innocent party who has incurred a liability or acquired a right through any inducement held out by the plaintiff, or the silence of plaintiff when the duty rested upon him to speak. The defendant acquired no right by any act done by him in the case of Black against Kelly, nor did he incur any liability which he would not have incurred but for his own wrong. The silence of plaintiff after the wrongful seizure forfeited none of his rights, nor did it any way remedy the original wrong. (2 Pom. Eq. Jur. Sec. 812; Schilling v. Black (Kan. Sup.) 81 Pac. 143; Donnell v. Reese (Kan. App.) 51 Pac. 584.)

3. During the trial the defendant offered W. J. Stephenson as his witness. Stephenson had drawn the mortgage from Almich to Kelly, both having gone to him to secure- his services for this purpose. He objected to testifying on the ground that what he learned about the transaction at that time was by virtue of his relation ■ to those parties, as- their attorney. The testimony sought to be obtained from him, as appears from the offer to prove made by counsel, was a statement made by Kelly, in the presence of Almich, that the mortgage was being made for the purpose of defrauding Black, and to hinder and delay Kelly’s other creditors, or words of like import. The witness was examined as to the relation he at that time sustained to Almich and Kelly. It appeared that Stephenson is an attorney at law, and was at that time a justice of the peace and notary public. Almich and Kelly came to him to draw the mortgage, bringing with them a memorandum of what was to be embraced in it, and. a description of the premises upon which the property was situated. Stephenson had a conversation with them about the matter, and thereupon drew the mortgage. So far as the record reveals what took place, they asked no 'advice of Stephenson, nor did he give them any. They had already determined upon what they would do before they sought his services. He did not advise them what to do, or how to do it. He charged them for what he did. Plaintiff waived his objection to the proof, but the court excluded it. Defendant excepted to this ruling of the court, and assigns it as error. “An attorney cannot, without the consent of his client, be examined as to any communication made by the client to him, or his advice given thereon in the course of professional employment.” (Code of Civil Procedure, Sec. 3163, Subd. 2.) It has been held by this Court (Davis v. Morgan, 19 Mont. 141, 47 Pac. 793) that this rule applies where one seeks advice upon communications made to an attorney, as such, even though- the advice sought is for the purpose of aiding the client to evade his creditors. The test here applied to determine whether the relation of attorney and client existed is whether advice was sought from the attorney professionally, either upon payment of compensation, or without' it. Any. comm unication made under such circumstances touching the matter with reference to which the advice is sought is privileged. ‘ ‘Knowledge acquired during the time the relation exists is not privileged unless it is acquired in the course and for the purpose of his (the attorney’s) employment.” (Satterlee v. Bliss, 36 Cal. 489.) The party seeking to suppress the evidence must sustain the burden of showing that it comes within the rule. (Carroll v. Sprague, 59 Cal. 655.) “And it must 'appear that the witness learned the matter only as counsel or attorney or solicitor for the party, and not in any other way, and that it was received professionally and in the course of business.” (Sharon v. Sharon, 79 Cal. 633, 22 Pac. 26, 3 31.) The communication must be confidential, and so regarded, at least by the client, at the time. (Id.) See, also, Gallagher v. Williamson, 23 Cal. 332; Hatton v. Robinson, 14 Pick. 416, s. c. 25 Am. Dec. 415; Hebbard v. Haughian, 70 N. Y. 54; Caldwell v. Davis, 10 Colo. 481, 35 Pac. 696; Mutual Life Insurance Co. v. Corey, 54 Hun. 493, 7 N. Y. Supp. 939; Todd v. Munson, 53 Conn. 579, 4 Atl. 99; De Wolf v. Strader, 26 Ill. 225; Smith v. Long, 106 Ill. 485; Borum v. Fouts, 15 Ind: 50. From the' examination' of the witness Stephenson, as shown by the record, it appears that he acted in the transaction about which he was asked, not as counsel to whom Almich and Kelly went to obtain advice, but as a scrivener only. What he learned seems to have been a'mere incident to the ministerial ■office of writing the instrument,- and -the notarial work' of authentication for record. Information obtained in this way is not privileged, even though the scrivener be an attorney at law. , (See authorities cited supra.) -It is commendable in an attorney to guard carefully the-confidences of his clients,- — ■ nay, it is his solemn duty to do so; but he.must also hold himself ready to take up his duties, to others at the point where his duty to his client ends, and give them the benefit, when the necessity arises for it, of the facts within his knowledge. We think, upon the record as it appears before us, the court erred in not requiring him to answer. For this error a new trial must be granted, because it is impossible to tell how a jury might view the case with this evidence before them.

4. Several' other errors are assigned, but of these we shall note only one. Defendant makes the contention that there was no evidence before the jury on the question of damages which warranted the court in submitting the ease to them at all. This contention is not supported by the record. There was ample evidence from which the jury could determine the value of the property at the time it was seized, or at anytime up to the rendition of the verdict. The court properly instructed the jury as to the measure of damages, under Section 4333 of the Civil Code, — that, if they found for the plaintiff, they should fix the amount found at the highest market value of the property at any time between the date of the conversion and the verdict. There was no request for any more specific instructions on this subject, but we would suggest that the jury should have been told that from the gross value there should have been deducted the cost of finishing the harvesting, and the threshing bill paid by defendant.

Let the judgment and order be reversed, and the cause remanded, with directions to grant a new trial.

Reversed and remanded.

Hunt and Pigott, JJ., concur.