Standard Oil Co. v. Meyer Bros. Drug Co.

SMITH, P. J. By reference to 74 Mo. App. 446, it will be seen Hi at this case was here on another occasion. The judgment which was for plaintiff was there reversed and cause remanded, since which time there has been another trial resulting in judgment for defendant, from which plaintiff has appealed. The general statement appearing in the report of the former case will suffice for this. The complaint now made relates to the action of the court in the giving of instructions for the defendant. It is insisted that the court erred in directing the jury to exclude from its consideration al! the evidence concerning any statement made by Mr. Ale-shire to the defendant concerning any of the claims against Lindley, or as to his financial condition prior to the time Mr. Aleshire returned to the defendant the- claims placed in his hands for collection. Mr. Meyer, defendant’s claim agent and adjuster, who testified at the trial, was asked by the plaintiff on cross-examination whether he received a certain letter from Aleshire & Benson, in which it was stated that Lindley owed from $1,500 to $2,000 for jewelry alone. The plaintiff objected to the answer of the witness on the ground that the communication disclosed by it was confidential between client and attorneys, and therefore within the prohibition of the statute (N. S. 1889, sec. 8925). It appears the letter referred to by the witness was written -while the said law firm had the defendant’s claim against Lindley in charge for collection. Finding that Lindley would not or could not pay the defendant’s claims, and that it would perhaps be necessary to institute one or more suits, attacking a certain mortgage deed given by Lindley to the bank whoso regular legal adviser it wras, it felt constrained to so notify the defendant and return its claims. One of the exceptions to the general rule which excludes communications between attorney [80] and client is that in cases where the subject-matter of the communication is not in its nature private. Greenleaf’s Evidence, sec. 244; Schaaf v. Fries, 77 Mo. App. 346. The rule does not extend, as stated in the case just cited, to the protection of matter communicated not in its nature private, or which can not properly be termed the subject of a.confidential disclosure. The fact, if it was a fact, that Lindley owed the amount stated by Mr. Aleshire for jewelry alone was, it is quite obvious, not a confidential disclosure at all. It was a fact that was probably known to many persons in the town where Lindley was conducting his business. It was but a report of a fact bearing on the financial condition of Lindley of which any one having knowledge thereof, whether lawyer or layman might, with propriety, give information. The matter can not, in our opinion, be regarded the subject of a confidential disclosure. Deuser v. Walkup, 43 Mo. App. 625. This instruction therefore should not have been given. The defendant insists that the second instruction which told the jury that if plaintiff sold the ten barrels of oil to Lindley, and that at the time of the sale Lindley expected to pay therefor, and that in making the sale plaintiff relied solely upon the statements of third parties as to his financial standing and ability, and that he made no statement to plaintiff or its agents regarding his financial circumstances, etc., was improperly given because there was no claim made by plaintiff that defendant made any such statements, nor was any right-of recovery based on any such ground. It seems to us that by this instruction the court called the attention of the jury to a matter which was irrelevant and misleading, and therefore should not have been given. The plaintiff further objects that the court erred in giving the defendant’s third instruction, which told the jury that a seller of personal property has no lien thereon for the, purchase price, and the fact that Lindley was indebted to plain [81] tiff for the oil in controversy would not warrant a recovery. This instruction should not have been given, for the reason that there was no such issue in the case. The plaintiff was not claiming possession of the property by reason of a Ken, but was claiming it on the distinct ground that it had not parted with its title thereto in consequence of the fraud of Lindley, and that the defendant was not more favorably situated in respect thereto than was Lindley, its vendor. Such an instruction tended to needlessly multiply unimportant issues and to mislead and embarrass the jury in determining the real decisive issues in the case. The defendant’s fourth instruction, in so far as it relates to false and fraudulent statements as to the financial condition of Lindley and that plaintiff relied thereon, is subject to the same objections as its second, and likewise should not have been given. The value of the oil at the time of the trial is all the value disclosed by the evidence. There is nothing in the evidence taking the case out of the general rule which, in cases of this kind, requires the value of the oil to be assessed as of the date of the trial. Chemical Co. v. Nickells, 66 Mo. App. 686. The three instructions given for plaintiff fairly and fully expressed the law applicable to the facts of the case which the evidence tended to establish. It follows that the judgment must be reversed and cause remanded. Ellison, J., concurs; Gill, Jnot sitting.