Smith v. Long

• Decision Date: 10 May 1883
• Citation: 106 Ill. 485,1883 WL 10237
• Parties: JOHN SMITH et al.v.JOHN T. LONG.
• Court: Illinois Supreme Court

106 Ill. 485

1883 WL 10237 (Ill.)

JOHN SMITH et al.

v.JOHN T. LONG.

Supreme Court of Illinois.

Filed at Ottawa May 10, 1883.

APPEAL from the Circuit Court of Warren county; the Hon. ARTHUR A. SMITH, Judge, presiding. Mr. J. L. DRYDEN, and Mr. L. B. CAKE, for the appellants:

Louise Smith, wife of complainant John Smith, and a proper party to the suit, was a competent witness, under the first exception in section 5, chapter 51, of the Revised Statutes, “where the wife would, if unmarried, be plaintiff or defendant.” The fair construction of this clause is, if the husband were taken out of the way she should have such an interest in the subject matter of the suit as she could sue for or defend. If she was a proper party, the section referred to makes her a competent witness. Hackett v. Bonhill, 16 Wis. 496; Barnes v. Martin, 15 Id. 264; Kavanaugh v. Jaynesville, 24 Id. 618.

This section has removed all disqualification on the ground of interest, and rendered every proper and necessary party to the suit a competent witness. Little v. Little, 13 Gray, 264; Schaffer v. Reuter, 37 Barb. 44; Marsh v. Potter, 30 Id. 506; Chamberlin v. People, 23 N. Y. 85.

The deposition of J. B. Johnson was improperly excluded. The employment of a scrivener or conveyancer, although an attorney, is not sufficient to exclude his testimony. He must be employed as an attorney. De Wolf v. Strader, 26 Ill. 225; Hatton v. Robinson, 14 Pick. 416.

There must be an employment, either with reference to some suit or judicial proceeding, existing or anticipated, ( Whiting v. Barney, 30 N. Y. 330, Berd v. Lovelace, Cary's Rep. 88, Austin v. Vesey, Id. 89, Kilway v. Kilway, Id. 126,) or advice sought and paid for with a view to regulate the future conduct in regard to pending or expected litigation. Thompson v. Kilborn, 28 Vt. 750; Alderman v. The People, 4 Mich. 414.

There must be either a retainer, offer to retain, or attorney's fee paid, to consummate the relation. De Wolf v. Strader, 26 Ill. 225.

The privilege does not extend to communications made in the presence of all the parties to the suit, nor to third persons in the presence of the attorney. Britton v. Lorenz, 45 N. Y. 51; Whiting v. Barney, 30 Id. 342; Griffith v. Davis, 5 B. & A. 502; Shore v. Bedford, 5 M. & G. 271; Coveny v. Tannahill, 1 Hill, 33.

Messrs. PORTER & PORTER, and Messrs. STEWART & GRIER, for the appellee:

The chancellor, in rendering his decree, only considers legal and pertinent evidence, and the hearing of incompetent evidence is no ground for reversal. Swift et al. v. Castle, 23 Ill. 214.

Louise Smith was not a competent witness for her husband. Mitchinson v. Cross, 58 Ill. 366; Gravel Road Co. v. Madaus, 102 Id. 117.

Rejection of competent testimony is no ground of reversal, if the record shows its admission would not have changed the result. Rowley v. Hughes, 40 Ill. 316; Ryan v. Brant, 42 Id. 78.

Mr. JUSTICE SCHOLFIELD delivered the opinion of the Court:

This was a bill in chancery to set aside a sale of the interest of John Smith in the estate of his grandfather, Garland Ray, deceased, and a deed made pursuant thereto, to John Long, on the ground of fraud. The circuit court, after hearing the evidence, decreed that the bill be dismissed, and this appeal is brought to reverse that decree.

Several errors are alleged in the rulings occurring during the progress of the trial, but none of them are of controlling importance.

“In chancery cases the practice is, not to reverse for erroneous rulings in the admitting or excluding of evidence, unless it is seen, after an inspection of the entire record, that different rulings might have induced a different decree.” ( Willemin v. Dunn et al. 93 Ill. 520.) The entire record is before us, embracing not only the evidence admitted, but also that excluded, and unless we can see on this record there is error in the decree below, it must be affirmed. Swift et al. v. Castle, 23 Ill. 209.

We incline to the opinion that the deposition of Smith's wife was properly excluded, and that of Johnson, the attorney, should have been admitted. We have held, under the act of February 14, 1867, husband or wife are competent witnesses for or against each other, only in the cases mentioned in the exceptions to section 5 of that act. ( Mitchinson v. Cross, 58 Ill. 366; Gravel Road Co. v. Madaus, 102 Id. 417.) We do not understand the language in those exceptions, “except in cases where the wife would, if unmarried, be plaintiff or defendant,” as having reference to cases where the wife has been married, but is subsequently divorced, or her husband has died, as contended by counsel for appellant, but simply to cases where she has never been married,-- where the controversy does not concern a right resulting from marriage,--and it is plain this is not such a case. Nor does it concern her separate property, in any correct sense of that term, or fall within any of the other exceptions.

With regard to the deposition of the attorney, Johnson, the evidence shows only that the firm of which he was a member were employed as scriveners to draw up the papers requisite to consummate the contract to which the parties had agreed. There was no controversy,--both parties were present,--no litigation was anticipated, and, of course, no advice was, or could have been, sought, with reference to litigation. The facts, as mutually understood, were submitted, and the attorneys were required to draw the papers in conformity therewith, and for this service Long paid them. De Wolf v. Strader et al. 26 Ill. 225, is directly in point. It was there held, an attorney who is requested to prepare a deed or mortgage, no legal advice being required, is not privileged, and may testify as to what came to his knowledge in connection with such transaction. But we think this deposition is of but little weight in what we regard as the vital issue here, and circumstances are shown in regard to the conduct of the witness in connection with this case materially impairing the respect to which his evidence would otherwise be entitled. If we add the depositions of Mrs. Smith and Johnson, both, to the evidence of appellant, we are still unable to say the preponderance is so clearly on that side that the decree below should, for that cause, be reversed. In cases of this kind it is incumbent on the party seeking a rescission, to return, or offer to return, what he has received. He must place the opposite party in statu quo. ( Edmunds v. Myers et al. 16 Ill. 207; Underwood v. West, 52 Id. 397.) There are exceptions to this rule, as, where that received is entirely worthless, or by reason of peculiar circumstances not chargeable to the fault of the party seeking rescission, restoration of that received is impossible; but none of these are applicable here, that received being money, which may always be restored.

It is alleged in the bill that Smith sold his interest in the estate for $1000,--of which $400 was for the real estate, and $600 for the personal estate,--and this amount, only, is offered to be returned. The answer denies that this is the true amount, and alleges that the price paid was $1400,--of which $400 was for the real estate, and $1000 was paid for the personal estate. Smith testifies that the amount he received was $1000, while Long as positively testifies the amount he paid Smith was $1400. Each proves declarations of the other party to sustain his side of the case.

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