Cady v. Walker

Campbell, C. J. Plaintiff sued and obtained damages from defendant for an alleged breach of warranty on the sale of a horse. The warranty relied on was that the horse was sound and not breachy. There was some evidence that the horse was breachy, but none as to how far this would damage him. The only unsoundness shown was disease in the feet, and upon this the case went to the jury. It is questionable how far this testimony was admissible under the vague allegations of the declaration and bill of particulars; but as these might have been amended, this point is not very material. As the record appears, we do not think any warranty was made out. When the testimony is -carefully regarded, the representations as to soundness seem to have been made after the sale was complete, and not to have entered into the -consideration of the parties before. There was testimony of ■subsequent dealings somewhat inconsistent with a warranty ; but these are not for us to pass on. But the court, in charging that the plaintiff had shown a warranty, does not appear to be borne out by the proofs. There is another very serious question, which seems to be regarded by counsel on both sides as very material. It .appears that the parties proposed to submit their difficulty to Mr. Stellwagen, a mutual friend, who is also an attorney, and that they laid before him the facts, and that he gave • an opinion upon them. The court, however, not only told the jury to disregard this, but refused to allow Mr. Stelk wagen to be examined at all on what took place. The ground of the exclusion was that the communications were privileged. We have held on more than one occasion that there can be no privilege where both parties hear the communications, .and where they are not made by a client confidentially to -obtain counsel: House v. House, 61 Mich. 69, and cases •cited. In the present case neither party'sought Stellwagen [159] ■ separately or confidentially. Both went together, and counsel cannot very well represent, as such, two conflicting litigants. The case presents no features having anything to do with professional confidence. Neither made, or was expected to make, any communication which was to be concealed from the other. Stellwagen should have been allowed to testify. There is a further bearing of this testimony still more significant. A parol submission to arbitration is good at common law, and is not forbidden by any statute. The testimony tends to show that Stellwagen was resorted to as a ■common arbiter, and that he heard the parties and made his decision. If this was done in pursuance of the submission, it would be a valid award. It should have been received in evidence, whether operating as proof of admissions, or, in ease of a submission, to show the decision under it. Some other points might be worthy of attention, but they -do not seem likely to arise again, and we do not discuss them. The judgment must be reversed, with costs, and a new trial granted. The other Justices concurred.