Rylee v. Bank of Statham

• Decision Date: 25 February 1910
• Docket Number: 1,918.
• Citation: Rylee v. Bank of Statham, 7 Ga. App. 489, 67 S. E. 383 (Ga. App. 1910)
• Parties: RYLEE v. BANK OF STATHAM.
• Court: Georgia Court of Appeals

67 S.E. 383

7 Ga.App. 489

RYLEE v. BANK OF STATHAM.

No. 1,918.

Court of Appeals of Georgia

February 25, 1910

Syllabus by the Court.

Where it is shown that a paper which would afford evidence material to the issue is in court, in the possession of a witness, it is the duty of the judge to require its production instanter unless it appears that the testimony sought to be elicited is privileged. Moore v. Central of Georgia Ry. Co., 1 Ga.App. 514 (3), 58 S.E. 63; Daniel v. State, 55 Ga. 223; Trustees of Chester Church v. Blount, 70 Ga. 782. Communications between an attorney and his client are privileged, and hence the contents of a letter written by an attorney to his client is privileged. However, neither the fact that the attorney communicated with his client, nor that subsequently the client acted under advice of counsel, nor the date that the attorney communicated with such client, is excluded by reason of privilege. Consequently the postmark on the envelope which contained the letter from attorney to client, or the date of the letter itself, is admissible for the purpose of showing the day on which the communication was mailed and received.

Although the several city courts are without jurisdiction in equity still they may mold their judgment in accordance with equitable principles, where the defendant interposes an equitable defense. In a case in which the defendant sets up in his answer that he has deposited with the plaintiff certain collateral to secure the payment of his indebtedness to the plaintiff, and that his indebtedness has been fully paid, and asks that the plaintiff be required, by the judgment of the court, to return to him his collateral, and upon the trial these statements of the answer are proved without contradiction, the judgment of the city court should be so molded as to require that the defendant's collateral be returned to him.

Every citizen is presumed to know the law; and the notice which the statute requires to be given, in order to fix upon the defendant liability for attorney's fees (Laws 1900, p 53), is sufficient if it states the contract upon which suit will be brought, the term of the court to which the suit will be filed, and refers specifically to the act above cited. Such a notice is not in a legal sense misleading, though the defendant be notified that he will be liable for attorney's fees unless the principal and interest of his obligation is paid within 10 days after the receipt of the notice.

A creditor, who has in his hands as collateral security notes belonging to his debtor which could have been collected before maturity of the indebtedness due to him, or prior to return day of the term of court to which suit upon the indebtedness secured by such collateral was brought, cannot as against such debtor, claim a judgment for attorney's fees as to any amount which might, by the exercise of ordinary diligence, have been collected from such collateral. Consequently, where a defendant denies the plaintiff's right to recover attorney's fees, and the burden is thus cast upon the plaintiff to establish his right to such attorney's fees, and it appears that the note or contract upon which the attorney's fees are asked was secured by collateral notes sufficient in amount to have discharged the entire liability of the debtor, the plaintiff fails to establish his claim for attorney's fees, unless he shows that the collateral notes were in fact not collectible upon the return day of the court to which suit was brought, either because such collateral notes were not due, or for some other reason.

Where attorney's fees are recoverable at all, their amount is not determined by the amount claimed to be due upon return day, but is fixed (except so far as the result may be affected by special circumstances of an equitable nature) by the amount actually due on the return day and subsequent interest, if any, as determined either by voluntary payments made subsequent to the return day, or by the amount of the judgment for principal and interest (if no such payments have been made) which the plaintiff is entitled to recover.

As such attorney's fees as are recoverable are in the nature of liquidated damages which inure to the benefit of the plaintiff, and are not a provision for the benefit of his attorney, a plaintiff, who has given the required notice entitling him to recover attorney's fees, may waive them by settling with the defendant in full, or by accepting payments thereon from the defendant, under an agreement or understanding not to insist on the liability created by the notice.

Error from City Court of Jefferson; W. W. Stark, Judge.

Action by the Bank of Statham against E. H. Rylee. Judgment for plaintiff, and defendant brings error. Reversed.

Lewis C. Russell, for plaintiff in error.

R. L. J. Smith and Cobb & Erwin, for defendant in error.

RUSSELL J.

The first headnote is a sufficient elaboration of the ruling therein contained. It appears from the record to be undisputed that there was an agreement between the plaintiff in error (the defendant in the court below) and a duly authorized agent of the bank, in charge of its affairs, by which the bank agreed that, if the defendant would pay before a designated day the principal and interest on the note which formed the basis of the suit, the bank's claim for attorney's fees would be waived. It was contended by the plaintiff in error (and the record shows it was not disputed by the bank) that this agreement remained in force until the cashier of the bank received a letter from Mr. Smith, the attorney for the bank. The defendant contended that the original agreement, by which the bank agreed to waive its claim for attorney's fees, upon the condition that he was to pay the principal and interest by the first day of the court, which met upon the first Monday in October, was subsequently extended by the agent of the bank, for the reason that it was not convenient, upon the day mentioned, for the purchaser of certain cotton, the proceeds of which were to be applied by the defendant upon his note, to weigh or pay for the cotton that day. The defendant insisted that, when he stated to the agent of the bank that the necessity of weighing the cotton would cause a delay and that he would not permit this unless the bank was willing, he was informed that it would be satisfactory to the bank whenever the cotton could be weighed and paid for by Mr. Camp, the buyer. The witness for the bank testified that when he received the letter from Mr. Smith, the attorney for the bank, he showed the letter to Rylee and withdrew any further extension of time.

In the issue thus raised it became material to determine when the cashier of the bank received the letter from Smith, because there can be no dispute that any payments prior to that date would not be chargeable with the attorney's fees, under the agreement. The cashier, who was testifying, was unable to give the date from recollection. This fact developed upon cross-examination of the witness, and, in response to inquiry, the witness stated that he had the letter in his pocket at the time. Counsel for the plaintiff asked the court to require the letter produced, for the sole purpose of enabling the witness to fix the date. Upon the defendant's counsel objecting to the letter, the court refused to require the witness to produce the letter, even for the purpose of refreshing witness' recollection of the date, upon the ground that it was a confidential communication, and privileged, because it was a communication between attorney and client. We do not think that the rule in relation to advice or information given by counsel to his client is as strict or as well grounded upon the same reasons as the considerations of public policy which prohibit an attorney's disclosure of facts which may have come to his knowledge through his client. The client is supposed to communicate facts which, either directly or indirectly, may relate to his cause. The attorney does not usually furnish facts, though he is always presumed to correctly furnish the law to his clients.

But conceding that the contention of counsel is well taken, and that the contents of the letter, in so far as any information or advice communicated by Mr. Smith to his client is concerned, was privileged, still it seems to us that the mere date of the letter (as a fact illustrative of the time when Rylee and the bank cashier had their conversation) could not be in any true sense proof of the communication, and certainly not such proof of the nature or contents of the communication as is privileged. The fact that one wrote to another, as well as the fact that a letter bore the postmark of a certain date, which might be indicative of the time when the letter was written or received, has been held to be admissible, although the contents of the letter might be privileged. We do not consider the date that the cashier received the letter a controlling fact in this case; but as all the evidence is competent which tends to illustrate, even circumstantially, the truth of any contention of either party to a case, is competent, and as the witness stated that he had the letter in court, we think the defendant had the right to have the date of the letter shown, for the reason that it might be a circumstance corroborative of his testimony as to the time when Fite, the cashier, refused any further extension, and might have tended to have discredited Fite's statement upon that subject. The witness was under cross-examination, and it was the right of the opposite party to make that cross-examination a thorough and sifting test of the witness' credibility. It can readily be seen that, if it had appeared from the date that the letter was actually written after the time...