Sargent v. Johns

Opinion bt

Mr. Justice Mitchell,

There were two general grounds on which the defendants were claimed to be liable, first the actual assumption by them of the plaintiff’s claim against Alleman, and secondly an estoppel to deny such assumption by the published notice to Alleman’s creditors.

The first claim raised a question of fact which was properly left to the jury. Under the testimony it could not have been withdrawn from them.

The second question depends chiefly on the published advertisement in the names of the defendants of their purchase of the Alleman store, their taking possession of the entire stock, and their assumption of Alleman’s liabilities for goods purchased in that business. No question of the statute of frauds arises, for by the taking of the entire stock a consideration passed to defendants and Alleman’s creditors, though not parties to the contract, were parties to the consideration within the principles of Delp v. Bartholomay Brewing Company, 123 Pa. 42, and Adams v. Kuehn, 119 Pa. 76. Plaintiffs therefore as such creditors were entitled to sue in their own names if their claims were in fact within the consideration, or on the principle of estoppel if they were led to believe so, and to act upon such belief to their prejudice in reliance on a notice authorized or adopted by the defendants.

There was evidence sufficient to go to the jury that the advertisement was authorized by the defendants. The testimony of Mr. Benner was direct and positive that although he drafted the notice on the request of Alleman, yet in view of the circumstances he thought it best to communicate with the defendants, and did so over the telephone twice with Johns, read the notice to him and received his approval of it. Other evidence was to the same effect in the circumstances of the sending of the bill of sale to him by Johns so that he might get the notice in proper form, the payment for the advertisement by the firm, the failure of Gitt to disclaim when it was shown to him subsequently and demand for payment made by a representative of plaintiffs.

The contention of appellants that Benner’s testimony was not admissible cannot be sustained. The fact that he was an attorney at law does not render him incompetent to testify except as to confidential communications, and here there was nothing of the kind shown. Mr. Benner himself testified positively that he was not employed by defendants at all but by Alleman and not even by him in his professional capacity but acted clerically and entirely as matter of friendliness because Alleman’s regular counsel was away. There was no relation of client and attorney shown between the defendants and Benner. But even if such relation had been directly and expressly shown Benner’s testimony would not have been incompetent. The mere fact of employment of an attorney is not a confidential or privileged communication: Seip’s Estate, 163 Pa. 423, 432. There being a difference in the testimony of Alleman and Benner as to the circumstances of the latter’s connection with the notice, the court left the question of the relation of client and attorney to the jury instructing them that if they found such relation existed they should disregard Benner’s testimony. This was more favorable to defendants than they were entitled to.

The only remaining question was whether plaintiffs had altered their position in any way to their disadvantage in reliance on the published notice. This was also a question for the jury and was left to them with careful and correct instructions, including the express affirmance of defendants’ points that “ if the jury believe that the defendants at the time of the purchase of the store from L. M. Alleman purchased the same with the understanding and the belief that the Saigeant claim had been settled or arranged in some other way, and with no intention on their part to assume the same, then the defendants are not liable in this action, unless for some reason the defendants are estopped from alleging the actual contract of purchase,” and “ if the jury believe that on December 10, 1900, as soon as the notice published in the Gettysburg Compiler was seen by the plaintiff’s agent, or brought to the notice of plaintiffs or their agent, and an agent of the plaintiffs called upon the defendants, or either of them, and was at once informed that the notice did not include, and was not intended to include, the payment of the Sargent claim, then the defendants are not es-topped from alleging that said claim was excluded in the contract of purchase.”

The whole case in all its aspects was submitted to the jury carefully and we find no error of which appellants can complain.

Judgment affirmed.