Marsh v. Howe , 36 Barb. 649 ( 1862 )

By the Court,

Johnson, J.

The charge to the jury that if they believed, from the evidence, that the loan was made to Duckinfield alone, the note was valid, was unquestionably correct. If such was the fact, it was simply an agreement on the part of the borrower to pay a subsisting debt of his own, in consideration of a new credit, or a further loan. There can he no usury in such an agreement if the promise is to pay only the amount actually due on the old debt, and the amount of the loan with lawful interest. I think there was sufficient evidence upon the subject, to authorize the submission of that question to the jury.

But the exclusion of the evidence proposed to be given on the part of the defendant by the witness Hobbie was, I think, clearly erroneous. It was certainly material, in view of the questions tried and submitted to the jury. Indeed, there is no pretense on the part of the plaintiff that it was not material to the issue. It was objected to and excluded on grounds which assumed its materiality, and it is impossible for the court here to see how its admission would have affected the minds of the jury. It was objected to and excluded upon the ground that it was a confidential communication from a party to his attorney, and therefore privileged. It will he seen, however, upon looking with a little care at the evidence on the subject, that the communication sought to he proved, did not partake at all of the character of a privileged communication. The witness had been the attorney of the plaintiff, in the action in which the judgment was obtained. But the communication was made about two years and a half after the judgment was obtained, and several months after the plaintiff had assigned it to the defendant in this action, and had ceased to have any interest in it, or connection with it. The relation, therefore, had entirely ceased between them, in respect to that demand or its enforcement. The witness expressly testified that the conversation came up incidentally between himself and the plaintiff, and that he was not acting as the plaintiff's attorney in respect to the subject of it. It was, plainly, a mere casual statement as to the manner in which a matter had been a long time before disposed of, and about which the plaintiff, so far as appears, neither desired nor sought any advice or counsel. It does not, therefore, come at all within the class of privileged communications between attorney and client. It is a matter of no moment whatever, as regards this question, that the witness was at the time the attorney of the plaintiff in another matter, and that they had just before been in consultation in respect to such other matter. That gave the plaintiff no privilege whatever in respect to statements made upon other subjects wholly foreign to the one on which the advice and counsel had been just previously sought. A statement made to an attorney is no more privileged than one made to any other person, unless it is made for the purpose of obtaining professional advice on the subject of such statement. If it is a statement which has no reference to the professional employment, it falls within the exception to the rule of exclusion, although made while the relation of attorney and client exists. (1 Greenl. Ev. § 244. 1 Phil. Ev. 145. 2 Starkie’s Ev. 230, 231.) This is the rule in all the standard works upon evidence, and no case can be found to the contrary. If the statement had been made with a view of obtaining professional advice from the witness, in regard to the validity of the transaction, of which the assignment was a part, it would have been privileged. But the evidence expressly negatives this, and shows that it was made merely for the purpose of conveying a piece of information. I have assumed, from the facts disclosed by the evidence, that the relation of attorney and client was at an end, as regards the action in which the judgment assigned was obtained. I think it needs no argument to fortify this assumption. A bare statement of the facts will show most conclusively that the relation growing out of that employment was no longer subsisting when the statement in question was made. Hot only was the action at an end, but the plaintiff had, long before, ceased to have any interest in, or connection with, the fruits of the litigation. The foundation of the relation was gone, as much as though the judgment had been paid in money. The witness was not even the attorney of the assignee of the judgment. The case of Williams v. Fitch, (18 N. Y. Rep. 546,) relied upon by the plaintiff's counsel, is in no respect adverse to the foregoing-views, but is entirely in accordance with them. In that case the statement was upon the very subject of the professional employment.

[Monroe General Term, June 2, 1862.

Johnson, Welles and Smith, Justices.]

The judgment must therefore be reversed and a new trial ordered, with costs to abide the event.