12 S.E. 1038 (N.C. 1891), Carey v. Carey

• Citation: 12 S.E. 1038,108 N.C. 267
• Date: 24 March 1891
• Docket Number: .
• Parties: CAREY v. CAREY et al.
• Court: North Carolina Supreme Court

Page 1038

12 S.E. 1038 (N.C. 1891)

108 N.C. 267

CAREY

v.

CAREY et al.

Supreme Court of North Carolina

March 24, 1891

Appeal from superior court, Granville county; JAMES H. MERRIMON, Judge.

J. W. Hays, for appellant.

A. W. Graham, for appellees.

SHEPHERD, J.

The plaintiff excepted to the exclusion of the testimony of the witness R. W. Winston. As it does not appear that the order permitting the withdrawal of the original pleadings was put in evidence, we are unable to see how any testimony tending to explain it was relevant or material. We are of the opinion, however, that the witness should have been permitted to testify as to "what transpired between the plaintiff and Jennie Carey in reference to the settlement of the title to the land." Jennie Carey was the widow of Simeon Carey, who had the legal title, and as such widow was an interested party to the action. She was also the general guardian of the infant heirs at law of the said Simeon, and was defending their interest as such guardian. The declarations and admissions of such a party are generally competent, (1 Greenl. Ev. §§ 171-179; Steph. Dig. Ev. art. 28; Tredwell v. Graham, 88 N.C. 208; Adams v. Utley, 87 N.C. 356;) and there is nothing to show that the declarations sought to be proved were made by way of compromise. In Thompson v. Austen, 2 Dowl. & R. 358, BAYLEY, J., remarked "that the essence of an offer to compromise was that the party making it was willing to submit to a sacrifice, and to make concession." This is the true principle of the exclusion of such testimony, and it is incumbent upon the objecting party to distinctly show the excluding circumstances, and not leave them to be inferred from such a general statement as appears in this case. This ground of objection, however, does not appear to be seriously insisted upon; but it is urged that the witness should not have been allowed to testify by reason of his relation as attorney to one or both of the parties. It is an elementary principle "that whenever the relation of counsel or attorney and client exists all communications made to the counsel or attorney on the faith of such relation and in consequence of it, are privileged; and the counsel or attorney, if so disposed, would not be permitted to disclose them. *** To the general rule, as laid down, there are several qualifications, *** [as] where the witness was counsel for both the plaintiff and defendant, as between them the...