Yordan v. Hess — 13 Johns. 492

Majority

p. 492

Yorda n against Hess.

Headnote

a note wao drawn payable to A; and &, edCtoTseriwin!e Dtere°fie!i b”b Sorsed by a! fiisedto’endorle ceiveAsecurity for his indemni ' fication, which ^ it was agreed to give, rahd the nóte was sold to D„ at adiscouñt óf 20 per cebt. It being understood between B. and G. that part of the money thus raised shoulc) be lent to B.; B. drew a note payable to C. orbearer, for the amount actually received by him from C., with aii addition-qf.20 per cent, on that amotint, and interest thereoá from the date, which last mentioned note, was deposited with Aás bis security: in an action by- A agáiust B. upon this note, it was held that it wás usurious and void.

An attorney or counsel- cannot.testify a» to communications made by a client,-whilst the relation of attorney or counsel and client subsists; -But if aftdr that relatioirhas ceased, the former client r.epeattó his attorney, voluntarily* and without any artifice being Used, by the latter,-communications previously made, the attorney is a com? petentwitnéss as to such-subsequent communications. * ' . .

THIS. was an action of assumpsit, against the defendant- as maker of a .promissory note. Xhe cause Was tried-before Mr-. Justice. Van Mess,, at the Otsego circuit, in June, 1816.

On or about the 6th of March, 1813, one Williams had tnade a note for 343 dollars 25 cents, payable to the plaintiff and de: fendant in this suit, on or befpre the 1st of March, 1814; which note w’as given for the usé of Henry S. Yordan, Henry S, Yor

p. 493

dan, and the defendant, then proposed to sell the note to one Braman, at a discount of about 60 dollars, but Braman refused to purchase it, unless the plaintiff and defendant would endorse it, and the plaintiff refused to endorse it, unless he was indemnified. It being understood between the defendant and Henry iS. Yordan, that the latter should lend the defendant part of the money to be raised on the note, it was agreed that the note which was to be given by Hess to Henry S. Yordan, should be placed in the hands of the defendant as his security. The discount of the note made by Williams was effected, and a note was then executed by the defendant, dated March 6th, 1813, to Henry S. Yordan, or bearer, for 246 dollars and 67 cents, with interest from the date; and upon this note the present suit was brought. The plaintiff, on receiving this note, gave a receipt for it, to Henry S. Yordan, with an agreement to return it, when he should be indemnified against his endorsement. The plaintiff had been sued as endorser of the note made by Williams, but the suit was compromised, upon his agreeing to remain ultimately responsible in ease of its not being paid by the defendant. On this evidence, the defendant’s counsel contended, that the plaintiff had not such an interest in the note in question as to enable him to maintain an action against the maker of it, but the judge overruled the objection.

James Brackett, a witness on the part of the defendant, testified, that he had heard both the plaintiff and defendant state, that when they sold Williams’s note to Braman, a discount of 20 per cent, was made, and a sum in the like proportion was added to the note on which this suit was brought, over and above the amount actually received by the defendant from Henry S. Yordan. These facts the witness learned from the parties in this suit, while he was their attorney and counsel, in suits brought against them by Braman on Williams’s note; and the witness stated, that after he had ceased to be their attorney and counsel, he had twice heard the plaintiff admit, that the note in question was given for a larger sum than the defendant had actually received ; at one time, he said that the defendant had only received 240 dollars; at another time, that he had only received 220 dollars. The testimony of Brackett was objected to by the counsel for the plaintiff, on the ground that the disclosures were made to him while he was the attorney and counsel for the plaintiff, and that the subsequent'disclosures were nothing more than a repetition

p. 494

of what had been stated to him whilst he stood in that relation t© the plaintiff; and that, at all' events, the note was not usurious. The judge,'however, without deciding on the admissibility of the evidence, was of opinion, that the facts, if duly proved, constituted a case of usury; and a verdict was taken by his direction,' subject to the opinion of the court, s The ease w.as sub” mitted to the court without argument.

If the testimony of Brackett was admissible, it must fully' establish the usury. The plaintiff twice admitted to this witness that the^ note was given for a greater sum than was received by the defendant. That, the money was raised by a salé of Williams’s note, at a discount; furnishes no legal excuse for imposing that loss on the,defendant. With respect tó the testimony of Brackett, it doe's- not fall within the rulé which protects the client from a disclosure,of any communica-. tions made by him to his attorney,' The confessions, by the plaintiff to Brackett were made after he ceased to be his attorney; and although they were, substantially, a reiteration of What had been communicated, whilst the relation of attorney and client existed, yet they appear to have been voluntary disclosures, no way sought for, of drawn out, by the witness.- An attorney cannot, after he ceases to be the attorney of a party, disclose what was communicated to him in that capacity. But this is the privilege of the'client; and if he chooses, after thisrelation has ceased, to volunteer any communications, he is not protected, although, they may be, in substance, the same as were given whilst that relation subsisted. The reason of the rule then ceases. If a repetition of the information should appear to have been drawn out by any artifice, for the purpose of being used as evidence, it ought not tos be received.' But when it is perfectly voluntary, and unsought for, there can be no solid ground for ' excluding the evidence. The defendant is, accordingly, entitled to judgment.

judgment for the,defendant,"