The opinion of the court was delivered by
Hoyt, J.Appellant made a mortgage to the respondent upon a certain steamer for the sum of §3,000, and agreed therein that he would procure a policy of insurance upon such steamer in the sum of §5,000, and assign it to the respondent as further collateral security. Such insurance policy was taken out in the name of the appellant, but was not assigned by him as required by the terms of the mortgage until after the destruction of the steamer. The company declined to pay the loss on various grounds, and thereafter the appellant duly assigned said policy to the respondent. This assignment is alleged by the appellant to have been made in pursuance of a special contract entered into between him and the respondent at the time it was made. Upon the trial of the cause he introduced evidence tending to prove such special contract, and as a part of his proof in relation thereto offered one C. W. Hartman, a practicing attorney, as a witness to prove the terms and conditions of said contract. The court excluded the testimony of said witness on the ground that the transaction and conversation as to which he was called upon to testify was a privileged one as between attorney and client. Exception was taken to this action of the court, and its *296ruling thereon is the only error assigned as a reason for the reversal of the judgment. The position of the appellant in regard to such testimony was and is, that the said Hartman was acting as attorney for both parties, and that for that reason the statements made before him were not privileged as to either.
We are not called upon to decide this question, for, in our opinion, there was no consideration whatever moving to the respondent from the appellant for such special contract, and for that reason it could have no force and effect, however clearly it might have been proven before the court and jury. The only things which was alleged or proven as a consideration for any agreement made at that time by the respondent was the fact that the policy was then assigned to him. But in thus assigning the policy the appellant only fulfilled the terms of the contract between him and the respondent made at the time the mortgage was executed. And the doing of that which was his plain duty under the provisions of such contract then in full force and effect could furnish no consideration for any agreement made by the respondent in relation thereto.
It follows that the testimony excluded by the court would have been immaterial if put in evidence, and for that reason the ruling of the court thereon, however erroneous, cannot avail appellant as a foundation for the reversal of the judgment, and it must, therefore, be affirmed.
Dunbar, C. J., and Stiles, Anders and Scott, JJ., concur.