Jackson v. Bennett

Atkinson, Justice. 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. [110] The second clause of the same paragraph of the act above quoted disqualifies a surviving party or agent from testifying in his own favor, or in favor of a surviving or sane party, as to transactions or communications with a deceased or insane agent. The testimony offered was not as to communications or transactions with a deceased or insane agent, but v'as as to transactions and communications between a principal since become insane and his own agent; and clearly such transactions and communications do not fall within the prohibition of the statute. The statute above quoted represents the last expression of' the legislative will upon the subject of disqualification upon the ground stated. The first attempt of the General Assembly to define the circumstances under which the agent or attorney at law of a surviving or sane party would be competent as a witness against the adverse party, was made in 1889. See Acts of 1889, p. 86, par. (e). This provision was modified by the act of 1890-91, p. 107, and this in turn was modified by the act from which we quote as above. None of these provisions would have supported the objection made to the witness offered in this case, because none of them profess to deal with the agent of an insane party when offered as a witness touching transactions between himself and his insane principal, by the adversary of such principal. 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 [111] interest in the thing sued for as would disqualify him as though he were a party. If the fee, however, was not dependent upon what he might recover, but the service was rendered subject to adjustment between himself and his client and independently of what he might recover, then the contrary would be true. In looking through the record, we do not find such evidence as would disqualify the witness. It is true that in response to a question by the presiding judge: “Have you any other fee reserved except ten per cent, in these notes?” the witness answered: “No.” This answer, unexplained, might authorize an implication that he had reserved the ten per cent, stipulated to be paid as his fee, but when he further explained: “Well, I am under no express contract with the parties as to what fee shall be charged. I am the attorney of record, and prosecuting this case for the person who loaned the money. . . It is true I have no interest in the result of the case. I have no contract whatever with the parties about the fee I shall charge them. I expect to look to them for my reasonable compensation. I am not interested in any of these coupons,” the explanation removed the apparent interest in the recovery. Suppose he had recovered a judgment, for whose use would it have been recovered? In whom would have been the legal title to the recovery? Undoubtedly in the client— held subject, it is true, to the lien of the attorney for his reasonable compensation. If, however, there had been an assignment to lfim of the stipulation for attorney’s fees, while the judgment when recovered would have been in the name of the client, it would nevertheless have been in part for Ms use. He would have had an equity in the thing itself, and not merely a statutory lien upon it to secure Ms fee. In the one case he would have been a party having-an interest in the thing sued for. In the other he would not. In the one case he would have been disqualified. In the other he would not. Inasmuch as the witness Barnett was an attorney at law and representing the plaintiff oh whose [112] behalf he was called, and in the negotiation of the loan represented the borrower whose guardian was the defendant in this case, we think it proper to call attention to that other provision of our law which provides that an attorney at law shall neither be competent nor compellable to testify for or against his client as to matters coming to his knowledge by reason of the relationship of attorney and client, actual or prospective; and to say that the reason why the witness should not have been excluded under it was because, in the transaction between himself and the borrower, he acted in the capacity of an ordinary agent or broker to negotiate a loan, a relation which involves none of the delicate confidences which attend upon that of attorney and client, which latter are, upon considerations of public policy, privileged as against even voluntary disclosure by a faithless attorney. The mere fact that one is an attorney at law does not prevent his representing another as an ordinary agent. If the trust reposed be one belonging to that-class which pertains peculiarly to the relation of attorney and client, the communications between the two are privileged; but if the act to be performed is such as might have been as well performed by any other person, and involves none of the trusts and confidences peculiar to that relation, the right of disclosure is not prohibited by law. We conclude therefore that the witness was competent, and the court did not err in admitting his testimony. Judgment affirmed.