Later v. Haywood

Privileged Communications — Attorney and Client — Nonsuit on Plaintiff’s Evidence — Sufficiency of Evidence on Motion for Nonsuit. 1. Communications which pass between one who is merely acting as a conveyancer or friendly adviser and the grantor or grantee are not privileged communications under the provisions of subdivision 2 of section 5958 of the Revised Statutes, which protects communications which pass between attorney and client in the course of professional employment. 2. On a motion by the defendant for nonsuit after the plaintiff has introduced his evidence and rested his case, the defendant must be deemed to have admitted all the facts of which there is any evidence, and all the facts which the evidence tends to prove. 3. A case should not be withdrawn from the jury on motion for nonsuit after the plaintiff has introduced his evidence, unless the conclusion from the evidence necessarily follows, as a matter of law, that no recovery could be had upon any view which could reasonably be drawn from the facts which the evidence tends to establish. (Syllabus by the court.)

APPEAL from the District Court of the Sixth Judicial District for Fremont County. Hon. J. M. Stevens, Judge. Plaintiffs appealed from a judgment of nonsuit. A motion to make the complaint more certain, under our code, will not lie. Such an objection must be taken by demurrer. (Naylor v. Loan etc. Co., 6 Idaho, 251, 55 Pac. 297; Palmer v. Utah etc. Ry. Co., 2 Idaho, 315, 13 Pac. 425; Aulbac-h v. Dahler et al., 4 Idaho, 654, 43 Pae. 322; Idaho Rev. Stats. 1887, sec. 4178.) The relation of attorney and client must exist before communications can be deemed privileged, under section 5958 of the Revised Statutes. (Basye v. State, 45 Neb. 261, 63 N. W. 811; Ini re Monroe, 20 N. Y. Supp. 82; Haulenbeek v. McGibben, 60 Hun, 26, 14 N. Y. Supp. 393; Granger v. Warrington, 8 111. 299; Scales v. Kelley, 70 Tenn. (2 Lea) 706; Jones on Evidence, sec. 769; 2 Rice on Evidence, see. 2899.) Where several persons carry on the same business together, they are presumed to be partners. (1 Jones on Evidence, see. 48.) Partners, in a general partnership, suing as such, may prove their partnership by the testimony of a partner. (Abbott’s Trial Evidence, p. 204.) The presumption is that persons acting as copartners have entered into a copartnership. (1 Rice on Evidence, 54.) It is a general rule of law that partnership rights, and obligations of a firm continue, even after ceasing to do business, for the purpose of settling the affairs of the firm. (Corbin v. Henry, 36 Ind. App. 184, 74 N. E. 1096.) • No cause of action should ever be withdrawn from the jury unless the conclusion from the facts necessarily follows as a matter of law that no recovery could be had upon any view which could be reasonably drawn from the facts which the evidence tends to establish. (Great Northern By. Co. v. McLaughlin, 70 Fed. 673,17 C. C. A. 330; Gain v. Gold Mountain Min. Co., 27 Mont. 529, 71 Pac. 1004; Nord v. Boston etc. Silver Min. Co., 30 Mont. 48, 75 Pac. 681; McCabe v. Montana Cent. By. Co., 30 Mont. 232, 76 Pac. 701; Edmisson v. Drumm-Flato Commission Co., 13 Okla. 440, 73 Pac. 958.) Decisions upon mere matters of practice will not be disturbed, even if erroneous, unless it is apparent that injustice will likely result from adherence thereto, or a change will not work a wrong. (Carr, Byder & Adams Co. v. Closser, 27 Mont. 94, 69 Pae. 560.) The supreme court of California has decided that an objection to the complaint for uncertainty should be made by motion, and not by demurrer. (San Francisco Paving Co. v. Fairfield, 134 Cal. 220, 66 Pac. 255; City Carpet Beating Works v. Jones, 102 Cal. 506, 36 Pac. 841.) • The exclusion of evidence cannot be reviewed, where no offer to prove the facts sought to be elicited was made. (Tague v. John Gaplice Go., 28 Mont. 51, 72 Pac. 297; First Nat. Bank v. Oregon Pulp etc. Go., 42 Or. 398, 71 Pac. 971.) When a party moves for judgment on the pleadings, he not only, for the purposes of his motion, admits the truth of all the allegations of his adversary, but must also be deemed to have admitted the untruth of all his own allegations, which have been denied by his adversary. (Walling v. Brown, 9 Idaho, 184, 72 Pac. 960; United States ex rel. Search v. Choctaw etc. B. Go., 3 Okla. 404, 41 Pac. 729.) When an action is brought in the name of a party shown by the proof to have no interest in the cause of action, so that to bring in the real party in interest would not amount to a joinder of another party in' interest with plaintiff, but the substitution of one party for another, there is a fatal variance. (1 Spelling on New Trial and Appellate Practice, sec. 341.) STATEMENT OF FACTS. The plaintiffs, who are appellants in this court, commenced their action in the district court in and for Fremont county, on the eleventh day of January, 1905, praying that a certain deed made by George E. Hill, Sr., to Martha Haywood, though absolute in form, be declared to be a mortgage on the ground that such deed was given only for the purpose of securing the payment of a loan from the defendant Haywood, to Frederick R. Hays. The plaintiff also prayed that they be adjudged and decreed successors in interest of George E. Hill, Sr., and Frederick R. Hays, and that it be decreed that they are the legal owners of the property described in the deed, and that the defendant be required to convey the legal title to the plaintiffs, upon their paying the amount of the loan, with interest. It appears that the plaintiffs, Peter Later, Richard Later and Samuel S. Later, had been, for a number of years, prior to the commencement of the action, copartners, doing business under the firm name and style of Later Bros., and that prior to the commencement of. the action the firm had been dissolved, and the business and accounts of the firm had been turned over to the Rigby Hardware, Lumber and Manufacturing Company, a corporation which had been organized by the Later Bros., to succeed to the rights and interest of the copartnership. It was also agreed and understood that any debts or accounts that could not be collected by the corporation should be turned back to the Later Bros. About the fifteenth day of July, 1902, the plaintiffs made a contract with George E. Hill, Sr., to build a house for him on his ranch, and in the course of the business dealings agreed to take in payment for their services and materials furnished certain real property consisting of some town lots and the buildings thereon in the town of Rigby, at a consideration of $675. The plaintiffs in the meantime had a conversation with one of their employees, Frederick R. Hays, whereby they agreed to secure for Hays the property involved in this action either by purchasing the same or by assisting him in raising the purchase price. In the course of plaintiffs’ business dealings with Hays, a loan was secured through them from the defendant Martha Haywood, in the sum of $400, for the use and benefit of Hays, the defendant making the loan on the agreement and understanding that she should receive an absolute deed to the property as security for the loan. This appears to have been agreed to by all parties interested, and a deed was made and executed by George E. Hill, Sr., in favor of the defendant Haywood, and was delivered by Hill’s son to the Later Bros., and the $400 cash was paid by the defendant to Later Bros., for the use and benefit of Hays, whereupon the deed was delivered by them to the defendant. At the time of the payment of the loan, and the receipt of the deed of conveyance, a contract was entered into, whereby the defendant agreed to reconvey the property to Frederick R. Hays, upon the payment of the amount of the loan, together'with the interest thereon. At the time of this transaction there was due to Hays from the Later Bros., the sum of about $100 for labor. The amount of the loan and the $100 was paid to Hill on the purchase price for the property, and the Later Bros, paid Hill the difference. About two weeks thereafter, Hays executed and delivered to the Rigby Hardware, Lumber and Manufacturing Company, his promissory note for the sum of $181, being the difference between the purchase price for the property, together with the amount of money which the Later Bros, had to his credit, and the purchase price paid to Hill for the property. Some months after the purchase had been made, and the loan secured, Hays executed and delivered a quitclaim deed in favor of the plaintiffs, the Later Bros., for the property in dispute. The plaintiffs introduced their evidence tending to establish the allegations of their complaint, and, after they had rested their ease, the defendant moved for a nonsuit, which motion was granted.