Hughes v. Boone

• Decision Date: 11 March 1889
• Citation: 9 S.E. 286,102 N.C. 137
• Parties: HUGHES v. BOONE.
• Court: North Carolina Supreme Court

9 S.E. 286

102 N.C. 137

HUGHES v. BOONE.

Supreme Court of North Carolina

March 11, 1889

It is for the court to determine whether a communication to an attorney is privileged, and for this purpose it had the right to inspect the deed of trust to the attorney to secure the notes, which was drawn by the attorney at the same time as the notes.

Thos N. Hill and W. W. Peebles, for appellant.

W C Bowen and R. B. Peebles, for respondent.

DAVIS J.

Civil action tried before GRAVES, J., at January term, 1888, of the superior court of Northampton county. William T. Stephenson died in 1876, and the plaintiff is his executor. The complaint alleges that on the 3d day of January, 1874, the defendant executed to his testator two bonds, each for the sum of $1,120, payable on the 3d day of January, 1875, with 12 per cent. interest thereon from January 3, 1875, till paid, the consideration being for money lent. It further alleges that divers payments were made on said bonds, setting them out in detail, leaving a balance due, October 1, 1885 of $1,727.29; and judgment is demanded for that sum, with interest at the rate of 12 per cent. on $893.27 from October 1, 1885, till paid. The answer admits the execution of the bonds, and alleges that the consideration of each was $1,000 and that 12 per cent. interest for one year was added to each, and the bonds given for the aggregate of principal and interest; that the same was usurious and contrary to law, and he pleads the said usury in bar of the recovery of interest; that the payments mentioned in the complaint of "interest up to January 3, 1876," were paid on the bonds, "and the said W. T. Stephenson was not authorized, and had no right to apply it to any interest." The defendant further alleges "that he placed in said Stephenson's hands a considerable quantity of cotton and other property for the purpose of paying the said bonds, and, being uneducated, and not able to calculate figures, he had to intrust the same entirely to said Stephenson, and he has recently had the same investigated, and he believes and alleges that by reason thereof the said Stephenson is largely indebted to the defendant." He then alleges, in detail, payments in addition to those mentioned in the complaint, and that he has overpaid the plaintiff's testator by $1,165.75, for which he demands judgment, with interest. The plaintiff replies that he has not sufficient knowledge or information to form a belief as to the averments in the answer as to the consideration of the bonds, or the averments of payment, and denies the other averments of the answer.

The record of the case on appeal is voluminous, and we condense it, as far as is practicable, consistent with a clear understanding of the numerous exceptions presented. The first three exceptions contained in the record are abandoned in this court. The defendant offered in evidence, one at a time, three papers marked "No. 2," "No. 3," and "No. 8," which purported upon their faces to be accounts of sales of cotton rendered to W. T. Stephenson by commission merchants in Norfolk and Petersburg, aggregating $821.49, each containing indorsements in the handwriting of W. T. Stephenson, showing the number of bales, the amounts, and dates when received, indicating that they were received by the person making the indorsement; No. 2, showing "sales, 7 bales cotton, Pete Boone;" No. 3, "sales of 3 bales, S. P. Boone, by Grandy;" and No. 8, "sales of four bales cotton, S. P. Boone." The plaintiff objected to the introduction of each of said papers, as well the indorsement in Stephenson's handwriting as the contents of the inside of said papers. The court sustained the objection as to the contents of said papers, but admitted the indorsement thereon, in the handwriting of the testator. The plaintiff excepted to each, and this is the first exception relied on. (1)

The defendant then offered in evidence an account of W. T. Stephenson with Hervey, Coker & Co. of Petersburg, in which said Stephenson is credited by net proceeds of four bales cotton, $163.86, and charged with certain sums named therein. On the back of said paper was the following indorsement:

"Sales, 4 bales cotton, S. P. Boone:

Hervey, Coker & Co ....................	$153 86
Express ....................................	75
	--------
	$153 11

"I am to give credit for above amount, $153.11, April 24, 1874."

The face of said paper was proven to be in the handwriting of P. E. Hervey, and the indorsement thereon in the handwriting of W. T. Stephenson. The plaintiff objected to the introduction both of the face of said paper and the indorsement thereon. Both objections were overruled, and the contents of said paper and the indorsement thereon were admitted, and the plaintiff excepted. (2)

The defendant then offered in evidence a receipt of the agent of the railroad at Seaboard, for four bales of cotton received from W. T. Stephenson, to Hyman & Dancy, Norfolk, Va., marked "S. P. B.," and on the back of which was the following indorsement in the handwriting of W. T. Stephenson: "Lawrence, Agt. Receipt, 4 bales cotton, S. P. Boone." The plaintiff objected to this evidence. Objection overruled, and plaintiff excepted. (3)

The defendant then offered in evidence a receipt of the railroad agent at Garysburg, for four bales of cotton received of W. T. Stephenson, to be shipped to Hervey, Coker & Co., Petersburg, February 20, 1874. On the back of this was the following indorsement in the handwriting of W. T. Stephenson: "4 bales cotton, S. P. Boone, Hervey, Coker & Co." The plaintiff objected to this evidence. Objection overruled, and exception. (4)

The defendant then introduced as a witness W. W. Peebles, one of the counsel of record for plaintiff, and who was then actively engaged in this case as such counsel, and asked the witness to state if he knew how much of the amount, to-wit, $2,240, stated on the face of the two bonds sued on, was principal, and how much was interest. The plaintiff objected to the question, on the ground that the witness derived his information from Stephenson (plaintiff's intestate) in the way of a confidential communication, and, as such, was privileged, being made to him as an attorney. The defendant insisted that the communication was not a privileged one; that the witness should state the circumstances under which it was made, if any such communication was made, so that the court could determine whether witness was correct in thinking it privileged. Defendant then offered, for the inspection of the court, a deed of trust from Boone to witness, securing one of the notes sued on. Witness admitted that he had drawn it, and that it was in his handwriting. Plaintiff objected to the court's inspection of the deed. Objection overruled. Plaintiff excepted. (5)

Witness was then examined by plaintiff, and stated that the deed was drawn by him at the same time the notes were written. That the deed and notes were written under the following circumstances, to-wit: The notes and deed were written in the office of the register of deeds. Defendant, (Boone,) Dr. W. S. Copeland, Stephenson, W. D. Coker, W. T. Buxton, the register of deeds, were all present, and I think R. B. Peebles came in, because he was a witness to the bonds. The witness then stated further that he was the attorney and counselor for Stephenson in the transaction, and that the communications made to him were made in his professional capacity as a lawyer; that he did not advise with Boone; that he could not remember whether the deed of trust was read over to Boone by him; did not remember that he saw him sign it. The court, after reading the deed in trust, held that the communications, if any were made at the time when the notes and deed were written, were not privileged, and required the witness to answer. Plaintiff excepted. (6)

The plaintiff then objected to inquiring into the consideration of the bonds. Overruled. Plaintiff excepted. (7)

Witness then testified as follows: "I do not know how much of the $1,120 mentioned on the face of each bond was principal, and how much was interest. All I know is what Stephenson said to me before I wrote the deed of trust. I asked him what should be the amount of the bonds. He asked me, if interest was not paid at maturity, how could he get interest on interest. I asked him how long the bond was to run. He said, 'One year.' I said, 'You can count interest from date of bond for a year, and add it to the principal, and then the principal and interest will draw interest from the time the bond falls due.' I knew that the rate of interest the bonds were to draw was twelve per cent. Stephenson then made some figures, and handed me on a slip of paper the amount of bond, $1,120. I then wrote one bond for that sum, drawing twelve per cent. interest from the time it was to fall due, and Stephenson then drew the other from it, making an exact copy thereof. Stephenson never told me, nor did Boone, the amount of money borrowed. I do not know how much Boone paid Copeland for the land. Stephenson let him have some, and W. D. Coker let him have some. Stephenson told me what rate of interest to make the bond draw. I know the defendant. He makes his mark. I don't think he can read or write. I do not remember that the bond was read over to Boone."

W. J Rogers is introduced by plaintiff as a witness, and papers marked "B," "C," "D," and "E," are shown him, and he says he signed "B" and "C" as a subscribing witness, and that S. P. Boone signed or acknowleged them before him; that he had never seen Boone to know him before that time; that it was done in the register's office, in December, 1874, or January, 1875; that the date was fixed in his mind from the fact that he had just...