Carey v. . Carey

Shepherd, J.: The plaintiff excepted to the exclusion of the testimony of the witness R. W. Winston. As it does not appear that the order permitting the withdrawal of the original pleadings wras put in evidence, we are unable to see how any testimony tending to explain it was relevant or material. We are of the opinion, however, that the witness should have been permitted to testify as to “ what transpired between the plaintiff and Jennie Carey in reference to the settlement of the title to the land.” Jennie Carey was the widow of Simeon Carey, who had the legal title, and, as such widow, *270 was an interested party to the action. She was also the general guardian of the infant heirs at law of the said Simeon, and was defending their interest as such, guardian. The declarations and admissions of such a party are generally competent (1 Greenl’f Ev., §§ 171, 179; Stephens’ Ev., 28; Tredwell v. Graham, 88 N. C., 208; Adams v. Utley, 87 N. C., 356), and there is nothing to show that the declarations sought to be proved were made by way of compromise. In Thompson v. Austin, 2 D. & Ry., 358, Bayley, J., remarked : “That the essence of an offer to compromise was, that the party making it was willing to submit to a sacrifice, and to make concession.” This is the true principle of the exclusion of such testimon}', and it is incumbent upon the objecting partv to distinctly show the excluding circumstances, and not leave them to be inferred from such a general statement as appears in this case. This ground of objection, however, does not appear to be seriously insisted upon, but it is urged that the witness should not have been allowed to testify by reason of his relation as attorney to one or both of the parties. It is an elementary principle, “ that whenever the relation of counsel or attorney and client exists, all communications made to the counsel or attorney, on the faith of such relation, and in consequence of it, are privileged; and the counsel or attorney, if so disposed, would not be permitted to disclose them. * * * To the general rule, as laid down, there are several qualifications, * * * as, where the witness was counsel for both the plaintiff and defendant, as between them the matter was not, in its nature, private and confidential. Michael v. Foil, 100 N. C., 178, and cases cited. So it has been held in numerous adjudications that the rule does not apply to communications between parties to an agreement made before an attorney, or betwreen such parties and the attorney of one of them, or when made by one party to his counsel in the presence of the other party, or when *271 made by one party to the attorney of the other party.” Hughes v. Boone, 102 N. C., 137. The witness stated that at the time of the conversation or transaction he was counsel for the defendant only. Taking it either way, the matter was not privileged, according to the principles above stated. We think that there was error in rejecting the testimony, and for this reason the plaintiff is entitled to a new' trial. 2. The first issue w'as improperly framed. “ It is misleading to embody in one issue two propositions as to which the jury might give different responses.” Emry v. Railroad, 102 N. C., 225; Manufacturing Co. v. Assurance Co., 106 N. C., 49. As, however, the plaintiff assented to the issue in this form, it is not a proper ground of exception. 3. The Court excluded the testimony of Roycroft as to the date of the cancellation of the mortgage executed to him by Simeon Carey. In this ruling, his Honor but followed the opinion delivered in this case when it was before us upon a former occasion (104 N. 0., 175); but the ruling in this particular was unneces-arv to the disposition of the appeal, and, upon further consideration, wre think that the testimony of the said wdtness should have been admitted. The land was purchased of D. W. Wheeler, who executed a deed to Simeon Carey. Simeon, it seems, borrowed money of the witness with which to pay Wheeler, and executed to witness a mortgage to secure the same. The mortgage has long since been discharged and cancelled, and the witness had no interest in the controversy. Neither party derived title through or under him, and he was only' an incumbrancer to the amount of the mortgage debt. Bunn v. Todd, 107 N. C., 266. There must be newr trial. Error.