Thompson v. Kilborne , 28 Vt. 750 ( 1856 )

The opinion of the court was delivered by

Redeield, Ch. J.

I. The first question made in the present case is, whether the plaintiff’s communication to Johnson was under the confidence of the relation of counsel and client. It seems to us not to be of that character. There was no retainer, and nothing to show that the plaintiff sought the advice with any view to regulate his future conduct, in regard to a pending or expected litigation. And, had any retainer been charged, there is every reason to believe the plaintiff could justly have resisted the claim, upon the facts stated by Johnson. And, had Johnson, the next hour, received an application for counsel, and retainer, upon the other side, no one Gan question his being at full liberty to engage.

This anomolous relation testified to in the deposition, and which seems so much to puzzle Johnson, and which he so justly deprecates, certainly grows out of a too common facility, upon the part of the profession, in this state, to undervalue their professional and official character, as sworn officers of the highest judicial tribunal in the state. The practice of giving advice, upon legal subjects, without study and examination, and without corresponding pay, and a distinct retainer, is certainly a vicious one. The practice of the profession of giving street advice misleads the general opinion in regard to the value and dependence upon such advice. It would no doubt be better for the profession, and their clients both, if all professional advice, in regard to the prosecution and defense of claims, were given in writing, as it is in many places, and both parties are thereby put under the proper responsibility in regard to it, the one to pay for it, and the other to make it hold good, or to show, at least, that it was not notoriously bad. But, at all events, we cannot regard a conversation of this loose and indefinite character as entitled to the protection of professional confidence.

II. In regard to the question, whether the evidence, on the part of the defendant, tended to sujsporfc the issue, we have had more doubt. But it is obvious the defendant would not only be entitled to give evidence coming fairly within the terms of the issue, as closed upon the record, but also such testimony as came within the construction of the issue which the plaintiff had induced the county court to adopt.

The declaration upon this part of the case is, that the defendant covenanted to “ furnish the necessary kiln, dry-house, &c., for the purpose of preparing the hops for the market.” And the breach assigned is, that he “ did not furnish a proper and suitable dry-house, kiln, &c., in which to secure the hops.”

The plea to this part of the declaration is, that the defendant “did prepare” — “a suitable and convenient kiln and dry-house, and that it was prepared and ready for use,” when “ required for the purpose ” of securing the crop, &c. 2. That he did prepare,

&c., “ according to the true intent and meaning of the said contract, and to the full satisfaction of the plaintiff.”

The words of the contract are, “ to prepare a suitable and convenient kiln or dry-house, to be prepared and ready for use, when the same shall be required.”

The substance of the evidence offered and received upon the trial, and which it is claimed did not come within the issue, was, that the plaintiff, in 1846, directed the defendant not to build the dry-house that season, and consented to have his own dry-house used for that purpose, and that the defendant drew the hops to the plaintiff’s dry-house, and paid him for the use of it, and the plaintiff made no objection, but assented fully to this arrangement.

This seems to us to meet the issue upon both pleas. It is furnishing the dry-house as soon as required for the purposes of the contract, and also to the satisfaction of the plaintiff, either of which would be sufficient.

If this were" a plea of performance generally, and the proof of a dispensation with performance, it might merit a different consideration. The plea is only of a qualified performance, or performanee to the plaintiff’s acceptance, and the proof is that very thing. If the dry-house had never been built, but the plaintiff had consented to have the kiln drying done at his own kiln, and received pay for the use of his kiln, and made no objection, it would beu furnishing a kiln to his satisfaction.

Judgment affirmed.