Eekhout v. Cole.

Connor, J.

We find no valid objection to the question asked Mr. Posey. It seems that at the time of the transaction had by him with Mr. Kinsey his employment in the suit with Emerson was at an end and the employment in the other suit had not commenced. However this may be, the communication was not in any legal sense in regard to the business or employment in respect to which the privilege may be invoked. We think the testimony of Mr. Posey comes neither within the letter or spirit of the law. Greenleaf Ev., Vol. I, page 380 (16 Ed.). We find no suggestion that Mr. Poséy was or had been Kinsey’s attorney in regard to the purchase of the stock or the contract made respecting it. The exception must be overruled.

We see no objection to the course pursued by his Honor in asking the question of the witness. The reason assigned by him fully explains his action. It has been frequently said by this Court that Judges do not preside over the courts as moderators, but as essential and active factors or agencies in the due and orderly administration of justice. It is entirely proper, and sometimes necessary, that they ask questions of a witness so that the “truth, the whole truth, and nothing but the truth” be laid before the jury. The trial of causes.must not be permitted to degenerate into a mere game of chance or trial of skill, the victory going not to him whose cause is just but to the most skillful player. Learned and just Judges are appointed to see that suitors have judgment accordingly as they have the right of the controversy. The exception to his Honor’s question cannot be sustained.

There is no reversible error in his Honor’s charge upon the first issue. If the jury found that by mutual consent of the plaintiff and the defendant’s intestate the $500 deposited in the bank, to be forfeited if the plaintiff failed to comply with the contract, was withdrawn and the amount loaned to the defendant’s intestate, we see no good reason why it was not a valid contract and enf'orcible against the defendant’s intestate. It is unfortunate that the parties left the matter in so much uncertainty. One of them is dead, and by the law the lips of the other are sealed. In this condition of the matter the jury had nothing to guide them except the receipt and the testimony of Mr. Posey. The conclusion to be drawn from this evidence was for them.

We do not concur with his Honor’s view upon the second issue. He charged the jury that if they believed the evi- deuce Kinsey did procure tbe stock and Eekhout failed to take it; that if the money had remained in the bank under the original agreement, or if a forfeiture to that amount-continued to be a part of the stipulation, there was nothing due from the defendant to the plaintiff, but that if they mutually agreed to withdraw the money from the bank and that the forfeiture should no longer be a part of the stipulation, nothing would be due on the counter claim. We do not think the agreement to withdraw the money from the bank constituted conclusive evidence that the forfeiture should no longer be a part of the stipulation. It may well be that Kinsey, being in need of money, agreed to the withdrawal of the amount deposited upon condition that it be loaned to him, without releasing his rights under the contract. If the entire contract, with all the rights and liabilities accruing therefrom, was to be cancelled, it is strange that the stock was not withdrawn from the custody of the bank and returned to the shareholders. The giving of the receipt, instead of a note, indicates that the transaction was not closed. So far as appears upon the surface the $500 had been forfeited to Kinsey and he was entitled to demand and receive it. It may well be that he, to supply his immediate needs, consented to the withdrawal, leaving his rights under the contract open for adjustment. His Honor was of the opinion that if the agreement was “that the forfeiture should no long:er be a part of the contract,” then Kinsey had no other or further rights thereunder. We think he should have left the answer to the second issue to the jury to say whether, notwithstanding the agreement to withdraw the $500, the defendant was not entitled to recover of the plaintiff the damage sustained by the breach of the contract, and to fix the amount of such damage. He alleges that his intestate, at great expense and outlay of money, procured the stock and the plaintiff failed to take it in accord- anee with bis contract. We see no reason vrby be may not recover, by way of counter claim, sucb amount and other damages witbin tbe contemplation of tbe parties and proximately resulting from sucb breach of contract.

Tbe evidence sent up is meager, and we can do no more than direct a new trial upon tbe second issue. It is so ordered.

New Trial.