
    SMITH v. GUERRE.
    (Court of Civil Appeals of Texas. Amarillo.
    May 28, 1913.
    Rehearing Denied June 14, 1913.)
    1. Witnesses (§ 217) — Privileged Communications — Communications Between Attorney AND CLIENT.
    A client’s privilege as to confidential communications between him and his attorney may be claimed by his heir in a proper case until waived.
    TEd. Note. — For other cases, see Witnesses, Cent. Dig. § 780; Dec. Dig. § 217.]
    2. Witnesses (§ 2Ó6) — Communications Between Attorney and Client in Presence oe Third Person.
    The testimony of an attorney as to what took place at a meeting between him, his client, a third person, and the third person’s attorney was not incompetent as relating to a confidential communication, in a suit between his client’s heir and the third person, based on a contract executed at such meeting.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 761, 764, 765; Dec. Dig. § 206.]
    3. Witnesses (§ 198) — Communications Between Attorney and Client — Attack on Attorney’s Fidelity.
    Where in an action on a contract an attorney’s fidelity, in the transaction in which such contract was executed, was attacked, the attorney could testify to the facts so far as necessary to defend his character, notwithstanding the rule against the disclosure of confidential communications.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 747, 748, 753; Dec. Dig. § 198.]
    4. Witnesses (§ 198) — Communications Between Attorney and Client — Attack on Attorney’s Fidelity.
    In an action to foreclose a vendor’s lien, it appeared that plaintiff and defendant’s deceased husband entered into a contract for the exchange of lands, and that the husband subsequently brought suit for specific performance thereof, which was compromised by the execution of a new contract, as a part of which the vendor’s lien notes were given. Defendant sought to rescind the contract on the ground of her husband’s insanity, and also attacked the fidelity of her husband's attorney in the negotiations leading up' to the compromise contract, but did not question his actions prior to the filing of the suit for specific performance. Held, that letters written the attorney by the husband before the institution of the suit for specific performance were not admissible in evidence, under the rule that an attorney may disclose confidential communications where his fidelity in the transaction is questioned.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 747, 748, 753; Dec. Dig. § 198.]
    5. Witnesses (§ 158) — Statements of Deceased Persons — Competency to Prove Mental Condition.
    The statutory rule excluding evidence as to statements by, or transactions with, a deceased person did not prevent evidence of the statements of a deceased person for the purpose of showing his mental condition, in an action in which his competency to contract was involved.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 663, 665, 698, 699; Dee. Dig. § 158.]
    6. Trial (§ 255) — Instructions—Necessity oe Requests.
    Where, in an action to foreclose a vendor’s lien on land received by defendant’s, deceased husband on an exchange of lands, defendant sought to rescind on the ground that her husband was insane, and plaintiff replied, alleging ratification by the husband at a time when he was competent to contract, the trial court’s failure to charge on ratification was not error, where no instruction was requested, since an instruction as to a distinct independent issue, pleaded in avoidance of the main issue, need not be given unless requested.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 627-641; Dec. Dig. § 255.]
    7. Insane Persons (§ 79) — Contracts—Bat-IFICATION.
    The contracts of an insane person are voidable only, and may be ratified by acts done at a time when such person has mental capacity to make a contract clearly evidencing his intention to be bound thereby.
    [Ed. Note. — For other cases, see Insane Persons, Gent. Dig. §§ 138, 141; Dec. Dig. § 79.]
    8. Descent and Distribution (§ 148) — Actions— INSTRUCTIONS — BATIFICATION .
    In an action to foreclose a vendor’s lien on lands received by defendant’s deceased husband on an exchange of lands, where defendant sought to rescind on the ground of her husband’s insanity, an instruction as to the ratification of the contract by defendant after her husband’s death, which omitted the essential element of knowledge of previous condition, was properly refused.
    [Ed. Note. — For other cases, see Descent and Distribution, Cent. Dig. §§ 514^516; Dec. Dig. § 148,]
    9. Insane Persons (§ 66) — Contracts—BAT-IFICATION.
    Where, after the death of an insana person who had made an exchange of lands, his widow and heir dealt with the property received by him by releasing it or changing its status, with full knowledge of the material facts and circumstances connected with the contract and its execution, the contract was ratified by her, and the right of rescission lost.
    [Ed. Note. — For other cases, see Insane Persons, Cent. Dig. §§ 100-102, 104, 105; Dec. Dig. § 66.]
    10. Descent and Distribution (§ 148) — Actions — Batification—Questions for Jury.
    In an action to foreclose a vendor’s lien on land taken by defendant’s deceased husband on an exchange of lands, where defendant sought to rescind on the ground that her husband was insane, and the evidence showed that after his death she retained possession of the land, and collected rents from a tenant let in upon the property by the husband in his lifetime, as she .claimed, merely until she could make a settlement with plaintiff, and with a willingness to do equity, it was a question for the jury whether she elected to retain the property with knowledge of the facts, and thereby ratified her husband’s contract and lost the right to rescind.
    [Ed. Note. — For other cases, see Descent and Distribution, Cent. Dig. §§ 514-516; Dec. Dig. § 148.]
    11. Evidence (§ 471) — Conclusions—Evidence of Insanity.
    The mere general declaration of a witness as to the correctness or incorrectness of another’s ideas of values, without further testimony as to the conditions, was not proper testimony to prove such other’s insanity.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2149-2185; Dee. Dig. § 471 ; Witnesses, Cent. Dig. §§ 833-836.]
    Appeal from District; Court, Bandall County; J. N. Browning, Judge.
    Action by S. H. Smith against Mollie C. Guerre. Judgment for defendant, and plaintiff appeals.
    Eeversed and remanded.
    Gustavus & Jackson and A. S'. Bollins, all of Amarillo, for appellant. Madden, Trulove & Kimbrough, of Amarillo, for appellee.
    
      
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   HENDBIOKS, J.

S. H. Smith sued Mollie C. Guerre, surviving widow and only heir of E. B. Guerre, deceased, upon certain notes, and to foreclose a vendor’s lien, and upon an assumption of another debt and lien upon certain land in Bandall county. The-record discloses that Smith and E. B. Guerre, during the latter’s life, had a transaction involving- the exchange of some land in Missouri owned by Guerre, for some land in Bandall county owned by Smith, which resulted in the institution of a suit for specific performance by Guerre against Smith, and which suit resulted in the execution of a compromise contract on 'September 27, 1910, followed by the execution of deeds, exchanging the land, on October 15, 1910, Guerre agreeing to take more land in Texas than by the terms of the first trade, and the latter, with his wife and defendant in this suit, executing the vendor lien notes sued upon. Mrs. Guerre, the defendant in the trial court and the appellee in this court, pleaded her coverture and the insanity of her husband, existent at the time of the execution of the contract, as well as the vendor lien notes sued upon, and that the property obtained by plaintiff exceeded in value the property received by them in said trade, praying for a rescission and a judgment for a difference in the value' of the property, to which plaintiff replied, alleging the prior transactions between himself and the deceased, Guerre, and averring that the notes were the result of a fair compromise, and that if the husband of defendant was insane at the time he signed the compromise contract and notes, he ratified the matter before his death, and that his widow, the defendant, also ratified the transaction after the death of her husband. Verdict and judgment were rendered against appellant, plaintiff in the lower court, canceling the contract and notes, and for the sum of $1,270.12, in favor of appellee, the difference in the value of the two properties embraced in the trade.

The testimony of appellee in the trial of this cause, and her pleadings by implication at least, attacked the fidelity of the attorney who had represented her husband in a professional capacity in the matter of the compromise negotiations at the time of the execution of the compromise contract.

During the pendency of the negotiations, and at the time of the execution of the compromise contract, Guerre, the deceased, and his attorney, Smith, the appellant, and his attorneys were at the latter’s office, and the testimony of Guerre’s attorney, proffered • by appellant, extracted from appellant’s bill of exception, was excluded by tbe trial court on tbe ground that said testimony consisted of confidential communications between attorney and client, and wbicb offered testimony is as follows: “While at said office and in tbe presence of tbe above-named parties a number of things came up to be adjusted; tbe premiums on tbe insurance that had been paid in advance on tbe improvements; tbe question of tbe rents that would be due on (to) each of tbe parties; the payment of taxes for the year on tbe properties; tbe question of tbe incumbrance to be assumed by Smith against tbe Missouri land, and the amount to be paid Smith in the notes be was getting from Guerre; the assumption of tbe $1,850 note, already against section 100; the rate of interest; tbe time tbe deferred notes were to run, and which half of the section Guerre would get; tbe location of tbe bouse; and, well — in tbe discussion of all these matters, Mr. Guerre toolr part freely. I distinctly remember, during tbe discussion of wbicb half of tbe section Mr. Guerre was to get, that be said; What about that bouse? It has been blown or moved from tbe quarter I was getting. Is it still on tbe section? You know there has been some question as to whether that bouse and well were on tbe northwest quarter or across the line of tbe northeast quarter, but I was to have tbe bouse, and I understood tbe well, too, was on that quarter. I want to be sure of that.’ Mr. Smith said that be understood all along that tbe well and tbe bouse were to go to Mr. Guerre, and that tbe bouse be moved onto either half of tbe section be took. After considerable discussion, it was agreed that Smith should convey to Guerre tbe north half of said section, so that there would be no question about tbe well being on tbe land conveyed to Guerre. Mr. Guerre took part in a similar manner at that time, in discussing all tbe details of the trade. I don’t recall so nearly tbe language used by Mr. Guerre, in discussing tbe other details; doubtless becausei this was the first time I bad beard a discussion of tbe location of tbe well and bouse. He discussed all tbe matters intelligently, and seemed to fully understand them.”

First. Mr. Wigmore, in bis work upon Evidence, vol. 1, § 2291, says that tbe policy of the) privilege is founded upon tbe principle that “in order to promote freedom of consultation of legal advisers by clients, the apprehension of compelled disclosure by tbe legal advisers must be removed,” except upon tbe client’s consent; and it is also tbe rule that the heir of tbe client may claim the privilege in a proper case until waived (Emerson v. Scott, 89 Tex. Civ. App. 67, 87 S. W. 369, and authorities cited), and true that Mrs. Guerre, tbe appellee herein, is treated in this litigation in tbe capacity of an heir. It is to be noted, however, that tbe rejected testimony of the attorney in this matter was in regard to statements made by bis client in tbe presence of the other party to tbe disputed transaction and bis attorney, and the bill imports that a part of his statements were directly addressed to Smith, with whom ne was dealing in tbe matter of the compromise. The New York Oourt of Appeals, in tbe case of Britton v. Lorenz, reported in 45 N. Y. 51, announces this exception to tbe rule applicable to an attorney’s testimony of¡ this character: “Tbe rule deducible from* the authorities is that all communications made by a client to bis counsel, for tbe purposes of professional advice or assistance, are privileged, whether such advice relates to a suit pending, one contemplated, or to any other matter proper for such advice or aid; that where tbe communications are made in tbe presence of all tbe parties to tbe controversy, they are not privileged, but tbe evidence is competent between such parties.”

Tbe case of Murphy v. Waterhouse, decided by tbe Supreme Court of California, and reported in 113 Cal. 467, 45 Pac. 866, 54 Am. St. Rep. 367, announces tbe same rule, quoting Hughes v. Boone,, 102 N. C. 137, 9 S. E. 286, decided by tbe 'Supreme Court of North Carolina, to tbe same effect, also quoting Greenleaf on Evidence, vol. 1, § 245, “that an attorney may be compelled to disclose a statement made by him (tbe client) to tbe adverse party.”

Again, where an attorney’s fidelity as to a transaction has been attacked, with tbe imputation that be has been unfaithful to tbe interests of bis client, it would be a harsh rule to permit testimony by tbe client, or bis heir, in a cause, spread upon tbe public records, of this character, and not to permit tbe attorney to explain. Tbe rule is settled by all tbe authorities that in litigation between tbe client and bis attorney, tbe attorney, of course, has tbe right to make a full disclosure bearing upon the litigation, for tbe purpose of defending bis property rights; a defense of character, where publicly attacked is just as important, and to some more so, than property rights; it would violate a principle of natural justice and inherent equity to say that tbe right of tbe attorney’s defense is merged in a privileged communication when tbe client himself makes a public accusation (tbe relationship between client and attorney, having been private as to that particular matter, has become public by tbe act of tbe client) the spirit of tbe rule ceases when tbe client charges tbe fraud; tbe client’s right, of course, to be safeguarded by tbe court as to tbe admission of this character of testimony —and, as stated by tbe Supreme Court of Nevada, in tbe ease of Mitchell v. Bromberger, 2 Nev. 345, 90 Am. Dec. 552, where the attorney was suing the client, “he should not, however, disclose more than is necessary for bis own protection”; and hence Judge Freeman, in bis notes to O’Brien v. Spalding, 66 Am. 'St. Rep. 241, announces the rule, as to tbe testimony of an attorney, when tbe litigation is in this condition, as follows: “The object of the rule ceases, and the attorney is no longer bound by his obligation of secrecy, when his client or his representatives charge him, either directly or indirectly, with fraud or other improper or unprofessional conduct, and he may testify as to the facts.” The cases of Hunt v. Blackburn, 128 U. S. 464, § Sup. Ct. 125, 32 L. Ed. 488, and State v. Madigan, 66 Minn. 10, by the Supreme Court of Minnesota, also reported in the 68 N. W. 180, bear out Judge Freeman as to the principle announced, the other cases cited by him are not accessible to us. See Am. & Eng. Enc. of Law, vol. 23, p. 79, to the same effect. We think the testimony of the attorney was admissible, and sustain the appellant’s sixth assignment of error, with reference to this matter.

Second. The appellant’s seventh assignment of error, with the proposition thereunder, also attempting to apply the principle that the attorney should be permitted to testify concerning transactions in which his fidelity is questioned, should be overruled. The testimony offered consisted of letters written by the deceased, Guerre, to his attorney, in December, 1909, a short time subsequent to the first trade, and before the suit for specific performance was brSught by Guerre against Smith, and filed by this particular lawyer; and said letters were written nearly a year before the compromise contract between Smith and Guerre was executed in September, 1910. The reading of the letters in question indicates that they are of a confidential nature with reference to the first trade, and contain matter applicable to that contract, and indicate by inference a prospective lawsuit, and the bill of exceptions does not disclose that the admission of the letters would be material to a justification of the attorney; his actions prior to the filing of the suit do not seem to be questioned. The first reason advanced by us in the discussion of the sixth assignment, for the admission of the testimony of this attorney, bearing upon the negotiations at a time when all were present, is not applicable to the admission of this character of evidence ; and the testimony of Mrs. Guerre, the appellee, attacking this attorney, is referable to the action of the attorney at the time the compromise contract was made, and it would be by remote inference only that his conduct, prior to the time of the institution of the suit, is questioned. This attorney had testified: “I was employed to file the suit for specific performance some time in December, 1909. * * * A long time after I instituted the suit negotiations began for the second contract. The negotiations for the second contract only began two or three days before it was consummated.” The letters attempted to be introduced are clearly referable to, and are of a confidential nature regarding the first contract and matters pertaining thereto, and written at a time when the conduct of this attorney could not be questioned, and does not in this record seem to be questioned; hence the second reason invoked by us with reference to the admissibility of the attorney’s testimony, raised by the sixth assignment, is not applicable, and appellant’s seventh assignment of error is overruled.

Third. The appellant, by his fifth assignment, challenges the action of the court in admitting the testimony of Mrs. Guerre with reference to certain statements made to her by her deceased husband, on the ground of the statute excluding statements of, or transactions with, the deceased; also upon the ground that the statements were purely hearsay and not admissible for any purpose. The court admitted the testimony for the purpose of showing the mental condition of the deceased, and of course if competent for any purpose, could only be admissible upon that ground; if not competent to prove insanity in this character of litigation, it would not require the statute, invoked by appellant in his first proposition, to reject the testimony—the objection that it was hearsay testimony would be sufficient. Rankin v. Rankin (Sup.) 151 S. W. 529. The question is, if otherwise competent to prove insanity, would the statute invoked by appellant exclude the testimony, declarations of a deceased person offered by party to a suit to whom the statements were made?

The Supreme Court of Minnesota, in the case of In re Brown, 38 Minn. 112, 35 N. W. 727, held that the declarations of a testator, offered for the purpose of proving the mental condition of the latter at the time of the execution of a will, were not excluded by a similar statute, the court announcing that the testator’s “verbal acts were, equally with his physical acts, competent for the purpose of proving the mental condition of the testator,” and we are inclined to follow the rule announced by that court, and upon that proposition, without going into other legal phases of this question, overrule the assignment.

Fourth. The appellant’s assignments upon the matter of ratification, pleaded by him, are overruled for the reason that, while the evidence was sufficient to raise the issue to the jury as to the deceased’s adoption of the contract at a time when he was conscious of its provisions and its legal effect, however, appellant did not submit an appropriate special charge upon the subject. We are unable to find a case in point in this state where ratification is pleaded, but not charged upon by the trial court, and in the proceeding the complaining party has not offered to assist the court with reference to the matter, but reference to the case of Harrell v. Houston, 66 Tex. 280, 17 S. W. 732, by the Supreme Court, analogously bearing upon the question of a distinct issue pleaded by defendant, ignored by the court, and considered error, ■“though not such as to require a reversal of the judgment, as no special charge was asked to cure the omission” — and of course we are confining the rule to a distinct independent issue pleaded in avoidance of the main issue, without going into the refinement of the different cases discriminating their difference, where it is error in some cases for the trial court not .to instruct the jury, and in others only one of omission, where there has been a failure in this respect, and the litigant has not seen fit to assist the court.

In this state it is thoroughly settled that the contracts of an insane person are only voidable, and voidable obligations “may at any time be ratified, and thereby the right to avoid them be lost.” Ry. Co. v. Brazzil, 72 Tex. 239, 10 S. W. 406, and in view of another trial we quote further from the Supreme Court in that case that, if Guerre “by his acts, done at a time when he had mental capacity to have made a contract, * * * clearly evidenced his intention to be bound by the contract he had made, then he ought to be held bound, and no subsequent change of intention ought to affect the rights of the parties. Consent to be bound by a contract only voidable is ratification, however that consent may be shown.”

Fifth. Upon the question of ratification of the widow, the essential elements of knowledge of previous conditions is entirely lacking from appellant’s requested charge refused by the court, and hence properly refused. “Knowledge of all material facts and circumstances is an essential element of an effective ratification.” First Am. & Eng. Ehe. of Law (2d Ed.) p. 1189.

The acts of affirmance manifested by Mrs. Guerre, and relied upon by the appellant as indicating a ratification of the original contract, and the notes sued upon, consist in her possession of the property and the collection of the rents subsequent to her husband’s death. Adverting to the testimony for the purpose of clarifying the issue, upon her part it suggests a holding of the property until she could make a settlement with appellant; and, while she collected the revenues off the place (rented by her husband) during the interim between her husband’s death and the institution of this suit, there was some testimony of negotiations during this same period of a settlement of this particular matter, Mrs. Guerre contending she would not stay with the trade.

Connected with this matter of ratification the kindred but converse question of rescission arises. If she had dealt with this property by re-leasing the same property to another, or changing the status of the same, with full knowledge of the material facts and circumstances connected with the contract and its execution, the same would constitute inconsistent acts with the right of rescission, and ratification would ordinarily follow; such acts are unequivocal acts. In this instance, according to her theory, she merely collected the rents from a tenant let in upon the property by her husband during his lifetime, she retaining the possession of the same until she could settle the matter, and, according to her testimony, willing to do equity. Under the circumstances, they are not such unequivocal acts as are inconsistent with the right of rescission and entirely consistent with the principle of ratification. It was held by the Supreme Court of Indiana, in the case of Tarkington v. Purvis, reported in 128 Ind. 182, 25 N. E. 879, 9 L. B. A. 610, that “equivocal acts, however, which do not clearly evince a purpose, with complete knowledge of the fraud, to retain the property as his own will not defeat the right of the person defrauded to rescind. The act must be unequivocal, and must show an election to retain the property, after discovering the deceit, before the right to rescind is gone” — and, continuing, that court further said, “In the present case the right to claim a rescission had been fully perfected by the appellee, by tendering back everything that had been received, and by offering to place the fraudulent vendor in statu quo.” The offer of Mrs. Guerre, the appellee, in her pleading to perform equity is inadequate to the exigencies of the case with reference to a difference in amount in her favor she should be charged with against the excess and the difference of the value of the other property received by appellant. We think the facts of her retention of the possession of the property and the collection of the revenues off the property, if done with a knowledge of previous conditions, is sufficient to raise the question of her ratification; if Mrs. Guerre really elected to retain the property with such knowledge, of course, rescission is gone, and ratification has taken its place, and while her acts are equivocal, it is sufficient to send them to the jury upon that question.

We think the special exception to plaintiff’s petition, on the ground that it is not alleged who plaintiff’s associates were, or what persons acted with him in the transaction, should have been sustained; also the objections by appellant of the testimony of the witnesses — the condition the testimony is in; as to Mr. Guerre’s poor ideas of values— as we think the mere general declaration of a witness as to the correctness or incorrectness of a man’s ideas of values, with reference to other transactions, without further testimony of conditions, is not a proper character of testimony to prove insanity. The bill of exceptions with reference to Dr. Tucker’s testimony, and also with reference to Frank Graupner’s testimony, is so inadequate in the statement of same in the brief, we are unable to discuss the same. We are not informed what the objections were or the conditions under which the testimony was offered. Some of the assignments of appellant in this record do not make a distinct specification of error required by the rule, and some of them merely refer to the bill of exception for that purpose, which is not proper briefing.

We have made rather an extended review of this cause on account of reversing and remanding it in view of another trial. We have concluded that the testimony in the record is sufficient to raise the question of insanity, and it is on account of the sharp conflict existent in this record as to the incapacity of E. R. Guerre to make the contracts in controversy that we considered the sixth assignment of error in the record. The propositions under the assignment are adequate to raise the question of the admissibility of the attorney’s testimony, although the sixth assignment of error is wholly inadequate for that purpose. We rather concluded, on the substantial merits of this case, to exercise our discretion, as this court has often done before, in regarding some of the assignments; otherwise this cause might have been affirmed.

It is ordered that the cause is reversed and remanded.  