Kaut & Reineman v. Kessler & Schlather

Mr. Justice Green delivered the opinion of the Court, The preliminary examination of the witness Friedman disclosed the fact that he had been employed by Kessler, one of the plaintiffs, as counsel, to prepare the contract between the plaintiffs and Bartheld. He testified to the fact of the employment and the preparation and execution of the contract and judgment note, to the payment by Kessler for his professional services and as to who was present at the time of execution. The defendants, who were no parties 'to that [610] transaction, then offered to prove by the witness, all that took place between-his client Kessler and Bartheld at the time the papers were prepared and executed. Practically it was an offer to’ prove that the client had made a parol agreement with Bartheld different from the terms of the written agreement. As this was matter in parol it is a necessary consequence that the knowledge of the counsel was acquired in the course of his professional employment, and by the direct verbal utterances of his client. The party who offers this evidence, is not the other party to the contract, but a stranger who had no connection with it. To us it is perfectly clear that any words spoken, or any acts done, by the client, in such circumstances, in the presence of his attorney and in the course of his employment are privileged, and may not be proved by the testimony of the attorney without the consent of the client. We think the offer of testimony was properly rejected. In regard to the other assignments of error in relation to the character and effect of the contract, as ruled by the court below, we are equally clear there was no error. It must be borne- in mind that the property in question never was the property of Bartheld at any time before'the contract was made, it was not purchased by him nor paid for with his money. On the contrary the undisputed testimony is that the property was furnished by Kessler & Schlather, who procured it from other persons and paid for it with their own money. This being so the title would be conclusively in them unless it was divested by the operation of the contract between them and Bartheld, or by some matter in pais which clothed the transaction with a quality of fraud upou creditors. The latter of these subjects was duly-nommitted to the jury by the court with proper instructions tohrhe-effect that if there was an intent on the part of Kessler & Schlather to sell the property to Bartheld for $3,000 and wait on him for the payment of the money, then the title would pass to Bartheld and his creditors could seize it. The verdict of the jury disposes of this part of the case of the defendants because it finds the facts against them. As to the effect of the written contract itself it is not possible in our judgment to regard it as a sale in any view that can be taken of it. By the first clause Bartheld agrees to commence and carry on a liquor and restaurant business upon certain premises named. The second clause recites that as Bartheld has no capital he contributes nothing to the business, and agrees to carry it on in the name and style of “ George W. Bartheld, agent.” By the third clause Kessler & Schlather agree, in consideration of Barthold’s service, to expend $3,000 in fittiqg up and furnishing the place with all necessary fixtures’ and stock, and Bartheld “positively agrees ” that all the [611] property belongs to them. In the next clause Bartheld agrees to purchase beer necessary for the business from.Kessler & Schlather at $10 per barrel, and he agrees, in the next clause to pay all rents, taxes and gas bills; The contract closes with a stipulation limiting its operation to three years. In all this, there is not a provision, not a word looking to the acquisition of title by Bartheld to the property in question at any time or in any manner. The title which is already in KhsS-lqf & iBchlather remains in them, and cannot be divested by/the execution of any of the terms of the contract. Both in form and in substance the contract is nothing but a bailment. The cases cited for the plaintiffs in error have no analogy to this because they all contained provisions by which a passage of the title was provided for, but here there is nothing of the'kind. We can hot possibly say that this instrument shall have the character and effect of a sale when there is no part of it which can in any event give a right of purchase, or impose an obligation of sale. We think the learned court below presented the case-with entire correctness and fairness to the jury, and that there was no error in the charge or answers to points. The giving of the $3,000 judgment, and the price of the beer, were matters growing out of the oral testimony, and were for the jury. Judgment affirmed.