Leland v Sprague.

him to cultivate them, to about the sum of two hundred dollars. Allen went on and planted said ten acres with potatoes, and cultivated the same; and also planted a small piece of corn, and a few oats, on the same lot. It did not appear that the plaintiff exercised any control over the management of said place by Allen, or that he directed at all, as to the manner of carrying the same on, but that Allen carried on the same as he pleased, as ostensible owner.

On the 24th day of September, 1853, Allen sold his interest in said land, and gave a bill of sale of the potatoes growing on said land to the defendant and one Dana, and also an assignment of said writing from the plaintiff to him,-all for the sum of fifty dollars, which was paid by the defendant; and the defendant, on the next day, went on to said premises and dug and carried away all said potatoes.

The plaintiff's evidence tended to prove that when the defendant and Dana made the contract with Allen, they were informed by Allen of all the contracts, arrangements and dealings between him and the plaintiff, above detailed.

The defendant's counsel requested the court to charge that, conceding all the facts to be found which the plaintiff's evidence tended to prove, the plaintiff could not recover. But the court charged that, if they found the contract between the plaintiff and Allen to be as the plaintiff's evidence tended to prove, and, that it was understood and agreed between the plaintiff and Allen that said potatoes were to be the property of the plaintiff from the beginning, and that the plaintiff made the advances to Allen as he claimed, and that when the defendant and Dana made their contract with Allen they had notice of all these facts, then the plaintiff would be entitled to recover. To this charge and refusal to charge, the defendant excepted. The jury returned a verdict for the plaintiff.

T. P. Redfield for the defendant.

The case negates that Allen was the servant of the plaintiff. Nor can it be questioned that Allen had possession and dominion of the premises in his own right.

Does an executory contract to raise and deliver to the plaintiff potatoes, in futuro, at his starch factory, vest in him the title be

Leland v. Sprague.

fore delivery? Was Allen a tort feasor in using a portion of the potatoes in his own household? Had the crop failed, or had the potatoes been destroyed after they were dug, whose loss was it? Had a creditor attached them, could the plaintiff question his right? Hurd v. Darling, 16 Vt. 381; Loomis v. Lincoln, 24 do. 153.

This contract was executory, and vested no property in the potatoes until the delivery; Brainard et al. v. Burton et al., 5 Vt. 97.

Peck & Colby for the plaintiff.

The case shows title in the plaintiff, and conversion by defendant, and, in principle, cannot be distinguished from Smith v. Atkins, 18 Vt. 465.

The opinion of the court was delivered by

REDFIELD, CH. J. The facts in this case show that as between Allen and the plaintiff the superior title to the land was in the plaintiff, and, as to this contract, Allen agreed, virtually, to raise the potatoes for the plaintiff, and that, from the first to the last, the title should be in the plaintiff. This contract was bona fide, and upon sufficient consideration; and the contract, under which the defendant claims title, was made with a full knowledge of the plaintiff's contract with Allen. It is then resolved into a mere question whether, under the state of facts, we can regard the title in the potatoes as in the plaintiff. The case is no doubt pretty near the line, and might without much violence be decided either way. According to the decisions of many of the American states, it would not be regarded as vesting any title in the plaintiff, which would be exempt from attachment by the creditors of Allen. But by our decisions, if the land is to be regarded as the plaintiff's, a contract for the growing crop to be his property is valid, even as against attaching creditors of the tenant. Smith v. Atkins, 18 Vt. We think the principle of this case must control the present.

Judgment affirmed.

Thompson v. Kilborne.

OTIS THOMPSON v. ALEXANDER KILBORne.

Attorney and client. Confidential communications. Evidence.

A conversation with a lawyer, in reference to matters about which it was probable there would be litigation, but in which there was no retainer of the lawyer, nor anything showing that his advice was sought to regulate the future conduct of the other party in relation thereto, is not privileged from disclosure as a confidential communication between client and counsel.

The prevailing practice of the legal profession in this state, in giving opinions and advice upon legal subjects, without particular study and examination in reference thereto and corresponding pay or a distinct retainer, commented on and condemned.

Where to a declaration for the breach of a contract in not furnishing a proper and suitable kiln and dry-house, in which to secure certain hops, the defendant plead that he did prepare a suitable kiln and dry-house, ready for use when it was required, and according to the true intent and meaning of the contract, and to the full satisfaction of the plaintiff; evidence that the plaintiff consented that a new kiln and dry-house need not be built, but that one of his own might be, and that it accordingly was used, and the plaintiff paid for the use of it, is admissible, and has a tendency to support the issue presented by the defendant's plea.

COVENANT for the alleged breach by the defendant of his contract under seal, dated May 8th, 1844, agreeing, among other things, to furnish for the use of the plaintiff, for a hop-yard, for the period of nine years thereafter, five acres of the defendant's land, in Stanstead, and to prepare the necessary kiln, dry-house &c., in said yard, for the purpose of preparing the hops raised on said five acres for market, the plaintiff by said contract agreeing to cultivate, raise and prepare the hops for market, and deliver one-half of them to the defendant: the breaches complained of being the refusal of the defendant to allow the plaintiff to occupy said five acres as a hop-yard after the fall of 1847, and the neglect of the defendant to prepare the necessary kiln, dry-house &c. in 1846. The defendant filed several special pleas, averring performance on his part, and non-performance by the plaintiff of his part of the contract. The allegations, both in the declaration and plea, and the terms of the contract, which the supreme court were called upon particularly to consider, are sufficiently set forth in their opinion, and in the argument of the defendant's counsel. The cause was tried in the county court, by a jury, at the December Term, 1855,-POLAND, J., presiding,-when a verdict was returned for the defendant.

Thompson v. Kilborne.

The only exception reserved by the plaintiff, upon that branch of the case which related to the alleged refusal of the defendant to permit the plaintiff to occupy the yard after the fall of 1847, was in reference to the admissibility of a part of the deposition of Elbridge D. Johnson, formerly of Derby, but now residing in Peoria, Illinois, offered by the defendant, which the plaintiff claimed related to a communication made by him to the said Johnson, as his counsel; the part of the deposition objected to, and that part in reference to the deponent's understanding of the relation in which he stood to the plaintiff, being as follows.

"The said Thompson came to me at my office, and had considerable chat about his contract with the said Kilborne. Whether the conversation was professional, or semi-professional, or neither, I am at a loss to determine, but I will state the circumstances, and leave the matter to be determined by higher authority. Thompson introduced the conversation by inquiring about his contract with Kilborne for carrying on the hop-yard. I am unable to state its exact purport, but am able to state the substance. He inquired if he could not make use of something which had occurred between him and Kilborne to avoid the effect of his contract to carry on the yard. I am unable to state whether it was something Kilborne had said or done in the matter, and am unable to say what reply I gave him, but he then said he should not carry on the yard again, and he thought the matter he stated would protect him in so doing, and he inquired of me if I did not think so.

"The said Thompson intended to draw from me a legal opinion, I have no doubt, and that he did not expect or intend to pay anything for it, I have as little doubt; that I stated to him what was the law applicable to the case stated, is probable, but that I did not expect to receive any compensation for counsel, or intend to charge anything, is quite certain. I should state, perhaps, that Mr. Thompson was, when I knew him, a man somewhat given to legal reflections, and was supposed to have a slight taste for litigation, and was seldom without a controversy on hand, or one in prospect; and we were for many years neighbors and on friendly terms, and I dare say we have had some hundred just such legal conversations as the one above detailed, about his numerons controversies,

Thompson . Kilborne.

which were all equally fruitless of fees, except when he got into a suit, when he usually employed me as counsel, and paid me, not what I charged for my services, but what we agreed upon whenever we got through with the not over agreeable process of a settlement of our accounts. It is possible, also, that the freedom with which I was accustomed to converse with him on legal subjects, and without charge, may have led him into the habit of getting his law for nothing from me, at this and other times; at all events, it is quite as much my fault as his that I am not able to decide whether the conversation in question was a privileged communication or not. I am unable to say whether he understood our conversation as a consultation, or just a chat to fortify a determination he had already taken about the business. I may say that a different locality has taught me a much more sensible practice in such matters, and further deponent saith not.”

The court allowed the deposition to the point above designated to be read to the jury, to which the plaintiff excepted.

In reference to the alleged breach in not erecting a hop-house &c., the plaintiff's testimony tended to prove, that in the season of 1845, he advised the defendant not to build a hop-house in the yard that year, as the crop looked so unpromising that he considered it doubtful whether the land would be found suitable for growing hops, but that in 1846 he called upon the defendant to erect a hop-house for the use of said yard, and that the quantity of hops grown that year was such as to make it necessary, but that the defendant neglected to build one that year, whereby the plaintiff was obliged to have the hops taken to the plaintiff's hop-house in Derby, and cured there, whereby the hops were injured, and and the plaintiff subjected to expense and difficulty in getting them back into Stanstead.

The defendant then gave evidence tending to prove that the plaintiff advised him not to erect a hop-house, in 1846, for the same reason as in 1845, and assented that one should not be built that year, and that an agreement was made that the hops should be carried by the defendant from the yard to the plaintiff's hop-house in Derby, and cured there; that they were so carried, and that he paid the plaintiff for the use of his hop-house