111 Ga. 45 | Ga. | 1900
Stone instituted an action against Minter, administratrix, and Minter, administrator,.of the estate of William S. Minter, making substantially the following case : The intestate died on July 5, 1897, and at the time of his death was in
The answer denied specifically and at length all the allegations in reference to the indebtedness and the contract as set up by petitioner. On the trial of the case, Major John 0. Key was introduced as a witness, and testified as follows: “I knew AVm. S. Minter in his lifetime, and I know-plaintiff. This deed [referring to a deed handed to him], Wm.S. Minter to Jas. A. Stone, dated January 23rd, 1896, is in my handwriting. I wrote it at the instance and request of Mr. Minter. He and Mr. Stone were present. Mr. Minter said on that occasion, in the presence of Mr. Stone, that he and Mr. Stone had agreed "upon the compensation he was to give Stone for his board, lodging, and attention for several years past. He said that he and Stone had been talking a long time about this compensation, and that he had agreed to give Stone that piece of land, and be wanted me to write a deed to it to Stone as a compensation for his having remained and boarded there at Stone’s. He said that they had agreed on the price of the land at $2,800, and he was going to make him a deed to that land, that he had been talking about making a will, but he thought that arrangement would not do, that it would involve Stone in some litigation with his, Minter’s, kin, after his death. He spoke of Stone having been his friend and confidant, and said that he had, perhaps, created a suspicion among his kindred that he would do more for Stone than for them. He said that Stone had done more for him than any one else had done, and that he did not want Stone to get into such litigation, and he had decided to make him a deed to the land. He said that his people would be asking him about the matter of this deed, and in order that .be might have an excuse, and as Stone had the money to pay him the $2,800, he wanted it to appear as if it was a sale, and that he would pay the money back to Stone. He said that was the agreement. I was not present when the $500 note was exe
i
It is, however, contended that, inasmuch as the privilege which the law allowed is for the benefit of the client and not counsel, the rule relates only to confidential communications existing because of such relation; that inasmuch as the communication made by the client to the attorney was in the presence of the other party to the contract, it was not in law such a confidential communication as could not be given in evidence by the attorney. There seems to be very much force in this contention. The idea which seems to be involved in the establishment of the rule is not that of mere secrecy. It is not that the client has imparted to the attorney information about a matter which is to be concealed from the public, but it is founded on altogether a different principle. Having respect solely to the free and unembarrassed administration of justice, and to the security of all men in the enjoyment of their civil rights, no man is under a legal obligation to disclose facts or circumstances which would render questionable his demand for a particular right, or impair his defense to another’s demand. Originally, suitors and defendants appeared personally before the tribunal which interpreted and administered the law. Subsequently, however, when the application of legal principles and the forms of procedure became more complicated and intricate, the services of persons having knowledge of the one and skill in the other came into demand, and, to fully protect the rights of parties litigant, the procurement of the services of persons skilled in the law became universal. No man being compelled to himself disclose the weakness of his case, it followed, almost as a necessary consequence, that the person who represented him and presented that case could not do so. If it were otherwise, the free administration of justice would be restricted and theascer
In the present case the communication which was claimed to be privileged was transmitted to the attorney in the presence of the other party to the contract. It is true that by agreement between them the public were not to be informed of their private arrangement, not because such information wmuld add to the strength or increase the weakness of either side. The parties were apparently in full accord. No differences existed between them; and, in'order to carry out terms upon'which they were fully agreed, the communication was made to the attorney in the presence of both, and the secrecy necessary to be observed did not affect the contract, but w'as for the purpose of avoiding criticisms and questions of strangers to their agreement. It is the secrets of the client which affect his right that the law does not permit the attorney to divulge, and it seems to be well settled, on authority, that if the communication made by the client to the attorney is in the presence of the other party to the contract, and it comes wdthin his knowledge, such communication is not émbraced in the rule which prohibits
Reversed. AU the Justices concurring, except Fish, J., absent.