Borum v. Fouts

• Decision Date: 27 November 1860
• Citation: 15 Ind. 50
• Parties: Borum v. Fouts and Others
• Court: Indiana Supreme Court

15 Ind. 50

Borum v. Fouts and Others

Supreme Court of Indiana

November 27, 1860

APPEAL from the Tippecanoe Circuit Court.

The judgment is affirmed, with costs.

Chase and Wilstach, for appellant.

Vinton and Miller, for appellee.

OPINION

Davison, J.

The appellant, who was the plaintiff, brought this action against the appellees, to foreclose a mortgage upon real estate in Tippecanoe county. The following is the case made bye the complaint. The plaintiff, on September 11 1854, sold the land described in the mortgage to the defendant, Jacob Fouts, who, at that date, executed to him six promissory notes: the first for $ 1,060, due December 25, 1855; the second for $ 1,120, due December 25, 1856; the third for $ 1,180, due December 25, 1857; the fourth for $ 1,200, due December 25, 1858; the fifth for $ 1,500, due December 25, 1859; and, the sixth for $ 1,280, due December 25, 1860. The first three notes had been paid. The fourth was alone due, and unpaid, when the complaint, in this case, was filed; and the object of the present suit was to foreclose, as to the last three notes. After the execution of the mortgage in October, 1856, Fouts, the mortgagor, conveyed the mortgaged premises to Nathan Fouts, who, in November then next following, died, leaving Mary Fouts, his widow, and the defendant, John A. Fouts, his heirs at law; said Mary is now intermarried with Calvin McMillen. Jacob Fouts answered: 1. By a general denial. 2. That the notes, in suit, included usurious interest, at 10 per cent. per annum, from September 11, 1854. 3. That he, Jacob, at the date of the notes, purchased 170 acres of land of the plaintiff at $ 40 per acre, in all $ 6,800; of which, by the contract of sale $ 1,000 was to be paid December 25, 1854; $ 1,000, December 25, 1855; $ 1,000, December 25, 1856; $ 1,000, December 25, 1857; $ 1,000, December 25, 1858; $ 1,000, December 25, 1859; and $ 800, December 25, 1860. That the first payment was not to draw interest; but the second, third, and fourth payments were, at 6 per cent. from September 11, 1854; and the fifth, sixth, and seventh were to draw 10 per cent. per annum: and, that the notes, for the recovery of which this suit was instituted, were given for the last three payments, the same not bearing interest on their face, but including 10 per cent. interest from their date.

To this answer the plaintiff replied, denying the usury and alleging that the notes were given for a valid consideration, &c. McMillen and wife, by the consent of Fouts, answered the complaint by adopting the second and third paragraphs of his answer, setting up usury in the notes. And to their answer, so far as it set up usury, the plaintiff demurred, on the ground that Nathan Fouts, as shown by the complaint, had purchased the lands subject to the notes and mortgage, and that neither he nor his heirs had the right to set up usury: but the demurrer was overruled, and the plaintiff replied. John A. Fouts, the heir at law of Na than Fouts, being an infant, answered by guardian ad litem

The jury to whom the issues were submitted, found, generally, that there was then due the plaintiff $ 1,000; that on December 25, 1859, there would be due him $ 1,000; and, that $ 800 would be due him on December 25, 1860: and further, they found, specially, to the effect, that "in September, 1854, Jacob Fouts bought 170 acres of land of the plaintiff, at $ 40 per acre, making the aggregate amount of $ 6,800. That the three notes sued on, were given for part of the purchase-money, and were usurious in this: to the principal, in each note, there was added 10 per cent. per annum, for the time each had, respectively, to run; and such interest was so added in consideration of the delay of payment."

Plaintiff moved for a new trial; but his motion was overruled and a decree of foreclosure rendered on the verdict.

The plaintiff, at the proper time, moved to suppress the deposition of one John J. Taylor, taken by the defendants to be read in evidence in the cause; but the Court refused the motion and he excepted. This refusal constitutes the first error assigned. Taylor, in his deposition, says he was an attorney at law, and resided in Attica, in this State, where he had a law-office. At the request of the plaintiff he drew the notes then shown to him, being the same now in suit, also a title-bond, which contained the written contract between the parties.

None of the defendants were present when the notes and bond were drawn. The price of the land, described in the complaint, was $ 40 per acre; the whole amount, $ 6,800. The deposition, after setting forth the terms of payment for the land, as stated in the third paragraph of the answer, says: The plaintiff directed him, Taylor, to calculate interest on the three last payments at 10 per cent. per annum; to add such interest into the body of each of the last three notes, respectively; and his, Taylor's, recollection was, that the 10 per cent. was so added for the purpose of evading the statute against usury. The deposition further states, that Taylor, while drawing up the notes and bond, did not consider himself as acting in the capacity of an attorney at law, but merely as a scrivener; that "he was employed, by the plain tiff, to draw them up, and that was an end of it."

The appellant contends, that the communications made to the witness, as shown by the deposition, he being an attorney at law, are privileged, and, for that reason, the motion to suppress should have been sustained. As a general rule "Every communication, which the client makes to his legal adviser, for the purpose of professional advice or aid, upon the subject of his rights and liabilities, should be deemed confidential." 1 Greenl. Ev. § 240. This rule is not strictly confined to communications, made for the purpose of enabling an attorney to conduct a cause in court; but extends, so as to include communications made by one to his legal adviser while engaged and employed in that character, "and when the object is to get his legal opinion as to the employer's legal rights and liabilities." Foster v. Hall, 12 Pick. 89. But such communications, in order to be privileged, must be addressed to an attorney in his professional character of a legal adviser, with a view to legal advice which, as an attorney, it was his duty to give. 3 Phil. Ev., 4 Am. ed., 130, n. 62. In the case at bar, Taylor being an attorney at law, the question to settle is: Were the communications, made to him by ...