Farley v. Peebles

• Decision Date: 16 February 1897
• Citation: 70 N.W. 231,50 Neb. 723
• Parties: FARLEY v. PEEBLES ET AL.
• Court: Nebraska Supreme Court

50 Neb. 723

70 N.W. 231

FARLEY

v.PEEBLES ET AL.

Supreme Court of Nebraska.

Feb. 16, 1897.

Syllabus by the Court.

1. Generally, in order to bring communications made to a lawyer within the privilege accorded by the common law and declared by the statute, it must be shown that the relationship of attorney and client existed at the time the communications were made. While this rule has its exceptions, in the fact that communications properly made in negotiating for the employment of an attorney are likewise privileged, still neither the rule nor the exception, neither the letter nor the spirit of the common law or of the statute, extends the privilege to communications voluntarily made to a lawyer after he has informed the person making them that he will not and cannot accept the employment to which the communications relate.

2. A conspiracy, like other facts, may be proved by circumstantial evidence, and one means of proof is by showing overt acts of the individuals charged with conspiring. From the fact that different persons at different times, by their acts, pursue the same object, the jury may, in connection with other facts, infer the existence of a conspiracy to effect that object.

3. In order to justify the admission in evidence, for the purpose of establishing the conspiracy, of such acts of individuals, it is not necessary to first prove by other evidence the existence of the conspiracy.

4. Declarations made in pursuance of the object are likewise admissible, but to be so they must not be merely narrative of past occurrences, or statements of future purposes, but they must tend so directly towards the accomplishment of the alleged common object as to constitute a part of the res gestæ.

5. Evidence of such acts or declarations may have a twofold purpose: First, the proof of the existence of the conspiracy; second, the conspiracy having been proved, to charge each member thereof with the consequence of such acts or declarations. For the first purpose, the evidence is admissible generally as against all. For the second purpose, it cannot be considered against those not participating in the acts or declarations, unless from all the evidence the existence of the conspiracy has been proved.

Error to district court, Cuming county; Norris, Judge.

Action by Rosalie Farley against William E. Peebles and others for conspiracy. From a judgment for defendants, plaintiff brings error. Reversed.

Breckenridge & Breckenridge and C. C. McNish, for plaintiff in error.

Jay & Beck, for defendants in error.

IRVINE, C.

Rosalie Farley brought this action against William E. Peebles, A. C. Abbott, D. N. Wheeler, George F. Chittenden, and Harry F. Swanson, alleging in her petition that she is a member of the Omaha tribe of Indians; that there was made to her by said tribe on the 1st of May, 1892, a lease of 21,632.18 acres of the unallotted tribal lands of said Omaha Indians, for a period of five years, or until the allotment of the lands leased; that said lease was made for grazing purposes, rent being reserved at 25 cents per acre per year; that said lease was duly approved by the commissioner of Indian affairs and the secretary of the interior, and that plaintiff took possession under said lease of the lands therein described; that the lands were of great value to her for grazing purposes, and that she derived large profits therefrom; that in 1892 the defendants conspired together to interfere with her rights, and to destroy her business of grazing and pasturing cattle upon said lands, and of renting said lands to owners of cattle for grazing purposes, and pursuant to said conspiracy the defendants caused to be printed, and circulated among the customers of plaintiff, a notice purporting to be signed by the members of the council of the Omaha tribe, which notice was to the effect that plaintiff's lease had expired, and that any cattle or stock found on said lands after May 1, 1893, would be taken up for trespass, and held for damages. She further alleged that said notice was not in fact issued by the Omaha tribe; that many of the council knew nothing thereof, and never signed or authorized the signing thereof, all to the defendants' knowledge; that the sole purpose of issuing said notice was to prevent plaintiff from securing cattle to graze on said lands; that in further pursuance of said conspiracy the defendants caused said notice, with comment, to be published in a newspaper in Thurston county, which newspaper was published by the defendant Swanson; and that said newspaper circulated largely among plaintiff's patrons. The plaintiff further averred that in pursuance of said conspiracy, and for the purpose of ruining plaintiff's business, the defendants procured the institution in the circuit court of the United States of an action in equity, in the name of certain members of the council of the Omaha tribe, appearing for themselves and other members of the tribe, the object whereof was to obtain a decree, contrary to the facts, adjudging plaintiff's lease to be canceled, and that said action was begun for the purpose of slandering plaintiff's title; that, when said tribe learned of the commencement of said action, it repudiated the same; that several of the ostensible plaintiffs to said action did not authorize the suit to be brought, and did not sign or swear to the bill, although said bill had attached the jurat of one of the defendants, a notary public for Thurston county, indicating that all said plaintiffs had made oath thereto. Plaintiff further alleged that, by reason of such acts, certain persons, who had executory contracts with the plaintiff for the pasturing of cattle, had been induced to cancel the same, and that other persons had been prevented from entering into contracts with her, all to her damage in the sum of $8,000. The answer, while admitting certain allegations of minor importance, denied most of the allegations contained in the petition, including all the charges of conspiracy and wrongful acts. A trial to a jury resulted in a verdict followed by judgment for defendants. The plaintiff prosecutes error.

In addition to the foregoing statement, it may be well to say that the Omahas are a tribe of Indians having their residence chiefly in Thurston county. They were formerly in possession of a reservation, but, by virtue of certain treaties and acts of congress, a portion of their land was sold for their benefit, and a large portion of the remainder was allotted in severalty to members of the tribe. There remained unallotted a considerable body of land, subject to lease for grazing purposes, under certain supervision by the Indian bureau, for the benefit of the tribe. While the members of the tribe have adopted the habits of civilized life, a council composed of 12 members is retained, and exercises a certain control over property still enjoyed by the members of the tribe in common. It is to this communal property that this suit relates. These last facts are stated partly from the evidence, and partly as derived from the treaties and acts of congress, and as matters of public notoriety, of which the court can properly take notice. In view of these facts, it cannot be questioned that the plaintiff stated a cause of action. She alleged, more in detail than we have stated, a valid lease to herself of a large tract of land, the equitable ownership of which, if not the legal title, rests in the tribe of which she is a member; a conspiracy among persons outside the tribe to deprive her of the beneficial enjoyment of that lease; this conspiracy carried into effect by the publication of a false warning, purporting to be, but not in fact, signed by those having control of the tribal affairs, whereby strangers would be induced to avoid contracting with plaintiff on the faith of her lease; the institution of an action, in the name of the Indians, but without their authority, to cancel her lease; and damages as the result of such acts.

There are many assignments of error, but we address our attention to only two groups, which present, as we think, the two questions of most importance developed by the trial. The other assignments relate either to matters of minor importance; to matters probably accidental to the first trial, and not likely to recur; or to questions not properly preserved by exceptions, or in the motion for a new trial.

Thomas L. Sloan was called as a witness for the plaintiff. Mr. Sloan is a member of...