Bowers' Adm'r v. Briggs

Worden, J. This was an action by Wilson, as administrator of Silas Bowers, deceased, against Briggs, Laney and Lewis, upon a promissory note, of which the following is a copy: “ $2,000. December 29th, 1840. Six months after date, we, or .either of us, promise to pay [140] Silas Boioers or order, the sum of 2000 dollars, if not paid when duo, to draw 10 per cent, interest, per annum, till paid, whether in note or judgment, for value received. Signed: • John Briggs, Jr., Jambs Laney, Isaac Lewis, Samuel Thompson, John Medley.” Thompson was not sued, and Medley was alleged to have been dead at the time the suit was brought. The defendants Briggs, Laney and Lewis answered. Their answer was such as to admit, in evidence, the defense hereinafter stated. Issue, trial, verdict and judgment for the defendants. It appears by the answers of the jury to interrogatories that, after the note had been signed by the makers, other than Medley, and delivered to the payee, viz: on the 27th of October, 1841, Medley who lived in the county of Vigo, signed it as one of the makers, at the instance of Bowers, in order to enable the latter to bring suit upon it in the county of Vigo, the other makers living in Barke. The principal question in the cause is whether the alteration of the note, procured by the payee, by the addition of • the name of another party as maker, after it had been executed and delivered to the payee by the former parties, and without their consent, rendered it void as to such original parties.- That such altei'ation avoided the note as against the original parties, we have no doubt. Harper v. The State, 7 Blackf. 61; Henry v. Coats, 17 Ind. 161; Chappell v. Spencer, 23 Barb. 584. In the latter case, the authorities are very fully collected and discussed. Vide also 2 Parsons on Notes and Bills, p. 556-7. Another question is made. The plaintiff had taken the deposition of Judge Kinney in order to prove a subse [141] quent assent to the alteration of the note, on the part of two of the original makers, viz: Lewis and Thompson. On motion of the defendants, the following passage in the deposition was stricken out, and the plaintiff excepted: “They offered to confess judgment on the note now in suit, if I thought they could do it with safety; and I, knowing that said Lewis and Thompson had signed the note as sureties, and Briggs being the principal, they could not confess judgment with safety to themselves.” The whole deposition of Judge- Kinney is not properly before us, not being copied in the bill of exceptions; the following, however, is the ground of the ruling, as stated by the Court below: “On a motion to strike out a part of the deposition of Judge Kinney, it appeared to the Court upon an inspection of the record, that in 1841 a suit was instituted upon the note (now) sued on, and that the second plea then filed, alleged, amongst other things, that the note had been changed after it was executed by the payors, who resided in Parke County, by the payee having procured, without the knowledge or consent of the original payors, another person, in Vigo County, to sign it. The admission testified to, was made to the attorney of the plaintiff in the case, and was by those who were sureties to the note. As the proposition was made thus, as far as we can see from the deposition, in a conditional or alternative form, we can not come to any other conclusion than that it was intended as a legal proposition, or in the form of a question to elicit a legal opinion from Judge Kinney as to the rights of the parties defendant in the case as between themselves, and consequently it was a communication that ought not to have been disclosed by the attorney to whom the question was addressed.” The offer to confess judgment in the manner stated, might have had some tendency to show an assent to the alteration of the note, but we are of opinion that the ruling was correct [142] on the ground stated below. Judge Kinney, as attorney for the plaintiff", was prosecuting a suit against the makers of the note. Some of these makers were sureties. They were willing that judgment should go against them if it could be done “ with safety to themselves,” that is, we suppose, if they would not have it to pay, or if, having paid it, they could recover it back from the principal. The point on which they wanted light was as to the effect of a judgment against them, as between themselves and their principal. To be enlightened on this point they applied to Judge Kinney, undoubtedly in the capacity of an attorney and professional adviser, offering to confess judgment, if, in his opinion as such attorney and adviser, they could do it with safety. But it is objected that Judge Kinney was the attorney of the plaintiff in that suit, and not the attorney of the defendants, and therefore that the communication can not be privileged. We are not advised by the record that Lewis and Thompson at that time, had any other attorney, but if they had it can make no difference. If there be anything wrong in the matter, it was in the course pursued by Judge Kinney, in giving advice to the defendants while he was prosecuting the claim against them; in consenting to act as their professional adviser in a matter so intimately connected with the subject in which he was employed adversely to them. He did thus consent to act as their legal adviser, by giving them his opinion upon the point upon which they sought it. We do not, however, see anything reprehensible in the course pursued by Judge Kinney. He was consulted and gave his advice upon a point in respect to which, the plaintiff in the case then pending, had no interest; upon a question as to rights-of the defendants as between themselves; and his advice was certainly very proper and correct. That Lewis and Thompson had a right to take the advice-of counsel, in respect to the matter- on which they sought information, and their communication would be priv [143] ileged, although no suit was pending in respect to the matter on which they sought advice, is clear. 1 Phil. Ev. p. 130, note 62, Ed. 1859; Reed v. Smith, 2 Ind. 160. They might, perhaps, as well have applied to Judge Kinney for the advice sought as to any other lawyer. It does not appear that Judge Kinney was paid any fee for his advice, nor is it necessary that any should have been paid. Reed v. Smith, sufra. Eor aught that appears, he was legally entitled to one as much as for advice in any other case. John P. Baird, Charles K Hosford and Putnam Brown, for the appellant. Usher § Patterson, and McDonald $ Roache, for the appellees. Per Curiam. The judgment below is affirmed, with costs.