Stone v. Minter

• Decision Date: 06 June 1900
• Citation: 36 S.E. 321,111 Ga. 45
• Parties: STONE v. MINTER et al.
• Court: Georgia Supreme Court

36 S.E. 321

111 Ga. 45

STONE v. MINTER et al.

Supreme Court of Georgia

June 6, 1900

Syllabus by the Court.

1. When a client makes to his attorney a communication or statement in the presence of the opposite party as to the transaction in hand, it is not confidential or privileged, and the attorney is a competent witness to testify respecting the same on the trial of a case arising out of such transaction between the administrator of the client and the other party.

2. Parol evidence tending to show that a conveyance of land was really made in extinguishment of a debt, and that the grantor, for reasons satisfactory to himself, desired that the grantee should pay over to him, on delivery of the conveyance, the amount of money specified as the consideration, with the promise that, if this was done, he would repay said sum to the grantee, does not have the effect of varying any of the terms or conditions of the deed, Such evidence goes alone to the point as to what was the true consideration of the instrument, concerning which inquiry always can be made. The court erred in granting a nonsuit.

Error from superior court, Jasper county; John C. Hart, Judge.

Action by J. A. Stone against T. C. Minter and others. Judgment for defendants, and plaintiff brings error. Reversed.

F. Jordan & Son and George & George, for plaintiff in error.

J. D Kilpatrick, for defendants in error.

LITTLE J.

Stone instituted an action against Minter, administratrix, and Minter, administrator, of the estate of William S. Minter making substantially the following case: That the intestate died on July 5, 1897, and at the time of his death was indebted to petitioner in the principal sum of $2,300 besides interest. That said indebtedness arose in the following manner: In June, 1887, the intestate, who was aged, infirm, and had no family, was residing on his farm near where petitioner lives; that at the urgent request of the intestate, he was received as a boarder at the house of petitioner, with the understanding and agreement that he would pay to the wife of petitioner satisfactory compensation for his board, no specific sum being agreed on; that, in addition to boarding at the house of petitioner, the intestate, in March, 1888, became a lodger at his house, and continued to board and lodge, under the agreement aforesaid, from said respective dates to the time of his death. That, after he thus became an inmate of petitioner's home, the intestate repeatedly declared that he intended to convey a part of his estate to the wife and children of petitioner for the kind treatment he had received, and in payment for the board and lodging furnished him. That subsequently the intestate, not having performed any of said promises, petitioner insisted on a settlement of his claim for board. It was then mutually agreed that the sum of $2,800 would be a fair and reasonable compensation for the board and attention which the intestate had received, which sum the intestate proposed to pay by conveying to petitioner the title to 400 acres of land which adjoined the premises of petitioner. This proposition was accepted. It was then further proposed by the intestate that, inasmuch as his relatives would be dissatisfied with him, and cause a disturbance, if the land was conveyed in payment of the debt, he suggested that the petitioner should pay him $2,300 in cash, and execute and deliver to him a promissory note for $500, being the consideration to be mentioned in the deed, and that subsequently he (the intestate) would refund the money and note thus to be given to petitioner. That intestate stated as a reason for desiring to make this arrangement that he was old and feeble, and did not desire to be worried by his relatives, and that the arrangement proposed by him would be the means of concealing from his relatives the true transaction. That, relying on the promise of the intestate to repay him the sum of $2,300, and to return to him his promissory note, petitioner agreed to the proposition, and on June 29, 1896, he paid to the intestate $2,300 in cash, and delivered to him his promissory note for $500, and received a deed from the intestate conveying to him the aforesaid land.

That shortly thereafter the intestate did return and deliver to him his note, with the statement that, as soon as he was well enough, he would go to the bank, procure the money, and return it also to the petitioner. That the intestate was prevented from so doing by sickness which terminated in his death. The answer, denied specifically and at length all the allegations in reference to the indebtedness and the contract as set up by petitioner. On the trial of the case, Maj. John C. Key was introduced as a witness, and testified as follows: "I knew William S. Minter in his lifetime, and I know plaintiff. This deed [referring to a deed handed to him, William S. Minter to James A. Stone, dated January 23, 1896, is in my handwriting. I wrote it at the instance and request of Mr. Minter. He and Mr. Stone were present. Mr. Minter said on that occasion, in the presence of Mr. Stone, that he and Mr. Stone had agreed upon the compensation he was to give Stone for his board, lodging, and attention for several years past. He said that he and Stone had been talking a long time about this compensation, and that he had agreed to give Stone that piece of land, and wanted me to write a deed to it to Stone as a compensation for his having remained and boarded there at Stone's. He said that they had agreed on the price of the land at $2,800, and he was going to make him a deed to that land; that he had been talking about making a will, but he thought that arrangement would not do; that it would involve Stone in some litigation with his (Minter's) kin after his death. He spoke of Stone having been his friend and confidant, and said that he had, perhaps, created a suspicion among his kindred that he would do more for Stone than for them. He said that Stone had done more for him than any one else had done, and that he did not want Stone to get into such litigation, and he had decided to make him a deed to the land. He said that his people would be asking him about the matter of this deed, and, in order that he might have an excuse, and as Stone had the money to pay him the $2,800, he wanted it to appear as if it was a sale, and that he would pay the money back to Stone. He said that was the agreement. I was not present when the $500 note was executed by Stone, but in the conversation just related Mr. Minter said he wanted the deed made, and he would sign it, and that he and Stone would arrange balance by Stone's handing him $2,300 and his note for $500, and that both money and note were to be returned by him to Stone." On cross-examination the witness said: "I had been of counsel for both Minter and Stone. In writing this deed I was in his (Minter's) retainer. Q. Who represented Stone in that matter? A. Nobody but himself. Q. Who appealed to you to draw that paper [the deed]? A. Mr. Minter. Q. You didn't represent Stone at all? A. No, sir; I was doing this for Mr. Minter." And also: "A few days before I wrote the deed, I heard Mr. Minter and Mr. Stone talking together in my presence about this matter. In that conversation Minter told Stone that he was going to give him that piece of land valued at $2,800 as compensation for his board and the services that Stone had rendered him in taking care of him. He said to Stone that the money that he was to pay him was simply a sham, and fixed so he could say, if he was inquired of about it, that he had got the money from him. He was talking to Stone then." Counsel for defendant objected to this evidence, and moved to rule out the same on the ground that the facts testified to were a privileged communication between attorney and client, and therefore inadmissible. The court sustained the motion, and ruled out the evidence, to which ruling the plaintiff excepted. The plaintiff then introduced a number of witnesses, whose evidence tended to support the allegations of the petition. The plaintiff having closed, defendant moved for the grant of a nonsuit, which was ordered, and to which judgment the plaintiff also excepted.

1. Section 5198 of the Civil Code declares that certain admissions and communications are, from public policy, to be excluded as evidence. Among these are communications between attorney or counsel and client. Section 5271 of the same Code gives the rule to be enforced more explicitly. Its provisions are that "no attorney shall be competent or compellable to testify in any court *** for or against his client, to any matter or thing, knowledge of which he may have acquired from his client by virtue of his relation as attorney, or by reason of the anticipated employment of him as attorney, but shall be both competent and compellable to testify, for or against his client, as to any matter or thing, knowledge...