Denunzio's Receiver v. Scholtz

Opinion of the court by

JUDGE PAYNTER

Affirming.

Joseph Denunzio, died in September, 1894, possessed of a very large estate. In June, 1878, the appellee, Charles Scholtz, who was then quite young, was employed by Denunzio, and continued in his service until his death. So faithfully did he serve his employer that he was advanced from time to time, until he was practically in charge of the business. In September, 1893, Denunzio was in bad health, and contemplated- a trip to Hot Springs, Ark. Before going he conceived the idea of separating his large fruit business, managed by Scholtz, from his other business. So he concluded to organize a corporation, and its capital stock was fixed at $30,000. The stock was paid for by the assets of the fruit business. Previous to that time Scholtz in lieu of a salary was given one-fourth of the profits of the business. There was issued to Scholtz, $10,000 of the stock of the corporation. At the same time Denunzio took from Scholtz five notes, of $2,000 each, without interest, and retained the stock which had been issued in Scholtz’s name as collateral security. The notes which Scholtz gave were not found among the assets of the estate, neither was the certificate of stock. This action was brought by the receiver, as in an action on lost notes. The defense to it is that the notes and certificate of stock were given by Denunzio to Scholtz inter vivos.

The principal question involved is, did Scholtz show that the gift had been consummated? The testimony discloses the general facts as stated, and in addition thereto that in March, 1894, Denunzio, in his place of business, spoke of Scholtz’s long and valuable services, and declared his intention to give him the $10,000 stock in the corporation, and then delivered the certificate therefor to him, and tore up the notes taken from him for the $10,000.

It is insisted on behalf of the appellant that these facts did not constitute a delivery of the subject-matter of the gift, and therefore the effort to make the gift was ineffectual; that it could only have been done by an assignment or delivery of the notes. Several cases are cited by counsel for appellant, showing that there must be a delivery of the subject-matter of the gift and an acceptance of it. This is the general rule. The mere unexecuted intention to give of itself does not discharge an obligation. While the notes in this case were not hamded to Scholtz, they were destroyedj and the certificate of stock actually delivered to him, with the intention that he should have it free from liability for the indebtedness in its purchase. In Roche v. Georges’ Ex’r., 93 Ky., 609, 14 R., 584, 20 S. W., 1039, the court upheld a gift where the donor told his physician to tell his son Joseph that he wanted a certain note collected and the proceeds given to his sister. In Meriwether v. Morrison, 78 Ky., 572, the gift was upheld where the donor went to his desk, took out the notes, and handed them to a party, telling him to return them to the desk, and at his death deliver them to the party designated as the donee. In Stephenson’s Adm’r v. King, 81 Ky., 425, 5 R., 374, 50 Am. Rep., 173, it was held that a delivery of an inventory to certain property in the possession of an agent was a gift of the property. In Sutherland v. Sutherland’s Adm’r, 5 Bush, 591, it was held that the gift of a note was effectual by a declaration of the gift, the note then being in the hands of the trustee. In some of these cases the court held that the act and declaration of the donor created a trust, and the gifts were effectual. In Darland v. Taylor, 52 Iowa, 503, 3 N. W., 510, 35 Am. Rep., 2S5, it was held that the destruction of the notes, together with the declarations of the donor that he did not intend for the defendant to pay the debt, constituted a delivery. In Gardner v. Gardner, 22 Wend., 526, 34 Am. Dec., 340, it .was held that the destruction of a bond given as an evidence of the debt and a declaration that the money was his wife’s, was held to be a gift. In this case the donor did not only declare his intention to make the gift, but actually delivered the thing of value, to-wit, the certificate of stock, which he intended Scholtz to have, and to make that effectual he destroyed the evidence of the debt which incumbered the thing given. We think that the gift was effected by the acts proven in the case. The appellee is not only entitled to the presumption that he did accept the gift, because it was beneficial to him to do so, but the evidence shows that he actually accepted it.

On the trial of the case Aaron Kohn was introduced as a witness for the appellee to prove statements made to him by Denunzio, concerning the gift to appellee. It is urged that his testimony was not competent, because it was the revelation of a confidential communication from a client to his attorney, prohibited by subsection 5, section 606, Civil Code Prac., which reads as follows: “No attorney shall testify concerning a communication made to him in his professiona! character by his client or his advice thereon, without "the client’s consent.” It is insisted for the appellee that Mr. Kohn was a competent witness (1) because the subject-matter of his testimony did not pertain to any communication made to him in his professional character; (2) because if the communication was made to him in his professional character, it was not confidential or meant to be kept secret, but, on the contrary, was to be divulged for the purpose of effecting the intention and desire of the client. Kohn was employed to prepare the articles of incorporation of the fruit company. At that time Denunzio told him that he intended to give Scholtz $10,000 worth of the stock. Kohn prepared Denunzio’s will at a subsequent date, at which time he told him that he had given the stock to Scholtz, and torn up,the notes and given him the debt. Kohn testified that the information as to the giving of the stock and the destruction of the notes was not a matter upon which Denunzio asked his advice and had nothing to do with their confidential relations. The conversation detailed by Kohn as to the delivery of the certificates of stock and tearing up the notes was in the presence of J. G-. Fisher, now deceased, a friend of Denunzio. It was not the subject-matter about which the client was consulting the attorney. • The first statement was made when the consultation took place in regard to the articles of incorporation. The employment was to prepare the articles of incorporation, and not to advise with reference to giving away the certificates of stock therein.' The second conversation took place in a consultátion during an employment to prepare the will of the client. He did not consult the attorney about property which he had previously given away. The client’s purpose was to dispose of the property that he owned, not of that with which he had previously parted. The will did not mention the Scholtz notes. The Code provision referred to is simply a declaration of the common law as to privileged communications of clients. Taylor v. Roulstone, 22 R., 1515, 60 S. W., 867, 61 S. W., 354. The policy of the rule makes communications of clients to attorneys with reference to the subject-matter of consultations privileged, so as to encourage full confidence upon the part of the client in order to aid in the administration of the laws by the courts. This is upon the theory that the client will disclose everything within his knowledge in regard to the subject-matter of the employment. This being true, a communication made by a client to an attorney during the course of the employment, but not in regard to the subject matter of the employment, is not privileged. Instead of the client intending that his statements should be privileged, it would seem that he intended that they should be made public, if necessary, because they were made in the presence of an attorney and another person. It would seem that he wanted his lawyer and his friend to know that he had given the stock to Scholtz, and destroyed the notes. To give this information w*ould seem to be carrying out the desire of Denunzio. In Blackburn v. Crawford, 3 Wall., 175, 18 L. Ed., 186, the court held an attorney competent to testify to statements made by a deceased client in an action between the heirs and lessee. After recognizing the policy of the rule to be as we have stated, it was said: “But there is

another ground upon which we prefer to place our decision. The client may, waive the protection of the rule. The waiver may be expressed or implied. We think it is effectual here by implication as the most explicit language could have made it. It could have been mo clearer if the client had expi’essly enjoined it upon the attorney to give this testimony whenever the truth of his testamentary declaration should be challenged by any of those to whom it related. A different result would involve a perversion of the rule, inconsistent with its object, and in direct conflict with the reasons upon which it is founded.” In Doheny v. Lacy, 168 N. Y., 223, 224, 61 N. E., 258, it is said: “The veil of strict secrecy is thrown over communications between attorney and client when they are presumably of a confidential character, but, if the evidence discloses that the circumstances surrounding the transactions were such as not to warrant the presumption that the communications were in confidence, the Code provision is inapplicable.

. . . The reason of the rule is in the necessity of secrecy, in order that persons needing professional advice shall be encouraged to disclose freely and without fear the facts upon which that advice shall be given.” In Hall v. Renfro, 3 Mete., 52, the court said: “We are aware of no statute or rule of practice which excludes or renders incompetent as a witness an attorney in behalf of his client. Civil Code, section 670, defines with great exactness amd precision the classes of persons who shall be incompetent to testify, and attorneys are not embraced in either of the classes enumerated, except the fifth, which excludes an attorney concerning any communication made to him by his client, in that relation, or his advice thereon, without the client’s consent. In all other cases an attorney is a competent witness for or against his client. Whether he should or should not testify while the relation subsists is a question of professional propriety, which he alone is to determine for himself, and with which the court has no concern.”

The answer does not in express terms say that Scholtz accepted the gift, but in a general way states the gift was made. Besides, it is averred that the notes were destroyed and the stock was delivered to the defendant. The question'was tried as to whether the gift was effectual under the facts we have detailed, and the jury returned a verdict, under proper instructions, for appellee. Without entering into a discussion as to whether the answer was defective, it is sufficient to say the verdict cured it, if the defect existed. In Association v. Richart, 99 Ky., 802, 18 R., 95, 35 S. W., 541, the court held that when a defective pleading states facts sufficiently general to comprehend a fair and reasonable intendment, and there is enough in it to show that the plaintiff had a cause of action, the defect in the pleading will be cured by a verdict.

We are unable to find an error in the admission of testimony for the defendant, or any error in rejecting testimony offered by the plaintiff, which was prejudicial to the rights of the appellant.

Denunzio was the master and Scholtz the servant. Denunzio evidently was a man of strong mind, and managed and controlled his business, and there is not the slightest evidence that Scholtz exercised-any control of him whatever. The evidence simply shows that he was a faithful servant, and had the esteem and confidence of his employer. He was not acting as trustee for Denunzio, nor did he even have possession of the property when it was given tes iiim. The facts do not create a presumption that undue or improper influence was used to obtain the gift.

The judgment is affirmed.