I cannot concur in the views expressed in the. prevailing opinion in this case. It seems to me a fair construction of the contract between the parties is that the plaintiff was to be paid for services rendered by him a sum equal to fifty per cent of whatever sum should be recovered, by the defendant in satisfaction of the loss and damage sustained by him ; in other words, the plaintiff was to be entitled to one-half of the beneficial interest obtained by the defendant as the result of the plaintiff’s efforts. The defendant purchased the land appropriated by the city subject to a mortgage which he did not assume or agree to pay. This mortgage, amounting to between $7,000 and $8,000, was a lien upon the land taken by the city at the time the contract was made, and there was also a lien upon the same land for' taxes due the city, amounting to several hundred dollars, which had not been assessed against the defendant and which he was under no legal obligation to pay. The plaintiff had knowledge of these liens. The only possible damage which the defendant could sustain by reason of the taking of the land by the city was so much of the award made therefor as exceeded the amount of the mortgage and taxes. The award originally made, as stated in the prevailing opinion, was $4, and the liens being in excess of that, the defendant, if the award remained, did not sustain any damage at all. This award was vacated, and as the result of plaintiff’s efforts an award of $22,500 was made. This was.awarded in the proceeding, but it was not, in fact, recovered by the defend*328ant. The court directed that $7,500 be applied on the mortgage and $2,623.99 be retained by the comptroller of the city as security for the payment of the taxes, which left $12^376.01 to be paid to the defendant, one-lialf of which, it seems to me, under the contract,, the plaintiff was entitled to, and no more: Twelve thousand three hundred and seventy-six dollars and one cent is ail the damage which the defendant sustained and the contract is that he will pay to the plaintiff, in consideration of the services rendered by him, in “ obtaining compensation for the loss cmd damage sustained or which may be sustained by me for land taken * * *' sum equal to fifty per cent, * * * recovered, or confirmed on account of said loss and damageP
According to the construction put upon this contract in the prevailing opinion, if the award made had only equalled the amount of the mortgage and the taxes, the defendánt, notwithstanding the fact that he was under no obligation to pay either of them,, must, nevertheless, pay to the-plaintiff one-half of the sum. awarded. This seems to me to be unjust, and a forced and unreasonable construction of the contract, Viewed not only from the position in which the parties were when they entered into it, but also, from the language, used in it.
I am also of the opinion that error was- committed upon the trial' in the admission of evidence. Substantially the only question of fact contested upon the trial was whether the contract referred to-constituted the real agreement between the parties, the plaintiff asserting that it did and the defendant to the contrary. The plaintiff to support his contention called the witness Salter. Salter testified that he was an attorney and counselor at law, and as such had acted for the defendant from 1857 or 1858 until 1893 ; that he was-■acting as an attorney for the defendant in 1890, in reference to these proceedings; that he had a conversation with the defendant in reference to the compensation to be paid the plaintiff .when the contract, was signed; that he got the contract, took it to the defendant and saw him sign it. He was then asked : “ Q'. What did he ” (referring to defendant) “ say when he signed it % ” Objection was made on the-express ground that the witness could not answer this question, inasmuch as he was at the time acting as the attorney of Schreyer in that transaction. . The objection was overruled and an exception. *329taken, and the witness answered: “ A. When he signed it, he told me that he agreed to that; he brought it into.the office and signed it and wanted me to deliver it to Mr. Deering.” This testimony came directly within the letter and spirit of section 835 of the Code of Civil Procedure, which provides that an attorney or counselor at law shall not be allowed to disclose a communication made by •his client to him, or his advice given thereon, in the course of his professional employment.
For these reasons I think this judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event.
Patterson, J-., concurred.