Ganus & Co. v. Tew

MAYFIELD, J. This is an action, sounding in damages merely, for injuries to plaintiff’s health and estate, the result of defendant’s flooding his land by the erection and maintenance of a milldam. Some of the counts claim as for simple negligence in the construction and maintenance of the dam; others, in that the [360] wrongful acts of the defendants were wanton and willful. Demurrers to the complaint being overruled, defendant filed four pleas — first, the general issue; second, a plea of tender of $75; third and fourth, pleas setting up a license or permit from plaintiff to erect and maintain the dam. Demurrers were sustained to pleas 3 and 4; and defendant then filed plea 5, setting out a little more fully the same defenses attempted to be set up by pleas 3 and 4. Demurrers being overruled to this plea, plaintiff then moved to strike pleas 1 and 5, because inconsistent with plea 2, of tender. The court granted this motion, striking these two pleas, leaving only the plea of tender, on which the trial was had; the trial resulting in verdict and judgment for plaintiff for $250, From this judgment the defendants appeal. The.first error insisted upon was the striking of pleas 1 and 5 on plaintiff’s motion. This Avas clearly error. It is unnecessary to decide Avhether the pleas Avere so inconsistent with plea 2 that all could not be pleaded together, Avhich is the reason assigned for the motion and seems to have been the one acted on by the trial court. If this contention be true (as to which Ave intimate no opinion), the defendants were entitled to say which of the two lines of defense they would pursue, if not entitled to both. The plaintiff or the trial court had no right to select for them, which Avas the effect of the motion and the action of the trial court in striking pleas 1 and 5. The plaintiff and the court had no more right to select plea 2 as the one alone on which the case should be tried than they had to select 1, or 5, or both. If the pleas were so inconsistent that all could not be set up as defenses to the same suit, the court could decline to allow the defendants to set up all, and could compel them to elect as to Avhich of the inconsistent ones they would rely upon; but the court or the plain [361] tiff, one or both, could not select for the defendants, as they did in this case. It is unnecessary for us to decide whether the plea of tender filed in this case was sufficient or apt, as a complete defense to this action, which sounded in damages merely. Unless authorized by statute, the plea of tender is apt only in cases in which the demand is in the nature of debt, or in which the sum due is either certain or capable of being made certain by mere arithmetical calculation. It is not applicable to actions for the recovery of unliquidated damages. There are some other cases provided by statute for tender, such as actions for slander, etc, when accompanied by a recantation.—Wilhite v. Ryan, 66 Ala. 109. The court also committed error in allowing appellee to prove, over the objection of the appellants, the contents of a letter written by appellants’ attorney • to them, concerning a settlement of this suit. It was likewise reversible error for the court to compel appellants’ attorney, over his protest and that of his clients, to testify as to that letter and a copy thereof. This was clearly a privileged matter — a letter from an attorney, to his client, about the settlement of the identical matter on trial. No excuse, necessity, or justification is shown for thus compelling an attorney to testify as to transactions with his client. - Such matters are among, if they are not, the most privileged; and the cases are very rare, if any there be, where these secrets should be revealed by compulsion as was done in this case. The judgment is reversed, and the cause is remanded. Reversed and remanded. Dowdell, O. J., and Simpson' and McClellan, JJ„ concur.