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not be treated as confidential or privileged communications” Goodwin Gas Stove etc. Co's Appeal, 117 Pa. St. 514; 2 Am St. Rep. 696. And generally, where several persons emplo; the same attorney in the same business, as, for example, tu contest a will, communications made by them in relation to such business, while privileged as to their common adversary, are not privileged inter sese: Jackson v. French, 3 Wend. 337, 20 Am. Dec. 699; 19 Am. & Eng. Ency. of Law, 139, and note All have a property in confidential communications made under such circumstances. One cannot waive the privilege for his cosuitor nor enforce it against him: Beltzhoover v. Blackstock, 3 Watts, 20; 27 Am. Dec. 330. In this case three sisters had a common interest in defeating their half brother's will. A contest was entered upon. All of them were parties to it. Their position on the record was just what Nathan Seip chose to make it. This contest was settled by him, acting for those interested, for the sum of ten thousand dollars.

The question now raised is, To whom did this money belong? Not to Nathan Seip, for he could not have taken under the intestate laws as an heir of George Probst. It must go, says the learned auditor, to those whom Seip represented, and for whom Mr. Rupp appeared. To disclose their principals both Rupp and Seip are competent, and no one of the parties can successfully interpose the objection of privilege. But Seip is now dead, and his declarations made to Mr. Rupp, showing for whom he acted in making the contest, are objected to on the ground 433 that he is not competent to testify against his wife. But the declarations relate only to his own conduct, and are explanatory of it. They involve no breach of domestic confidence; they relate to no act or contract of his wife; they fix no liability upon her estate. He acted as the agent for his wife, but not for her alone. For whom else did he undertake to act? Who were his princi. pals in the litigation he began, carried on, and finally settled? The auditor finds that he was the agent of Mrs. Knauss as well as of his wife; and in his twelfth finding of fact he says: “That during the progress of the George Probst will contest, and at the time the settlement was consummated and the money paid to the counsel of contestants, Nathan Seip attended to the business affairs of Lydia Probst, the claimant, receiving money for her and paying bills." In other words, he was the business agent of Lydia Probst, in general charge

of her affairs. We can see no way by which the auditor reached the conclusion that he was not her agent in the management of the contest over the will also, except by rejecting the testimony of Mr. Rupp and the declarations of Seip, and then holding, as matter of law, that a compromise which affected the rights of Lydia Probst gave her no interest in the sum received.

We hold that the rejected testimony was competent so far as it was offered to show for whom Seip acted as agent, and for whom Rupp appeared as counsel. This disposes of the questions really raised on this record, but before dismissing the case it may be well to suggest another. Is it true, as the auditor seems to assume, that the money received upon the compromise of a controversy like this belongs only to those who appear as active contestants and contribute money toward the employment of counsel? The statute provides that any person interested may file a caveat, but it is well settled that thereafter the proceedings are not strictly between the parties, but are in the nature of a proceeding in rem; and a decree when made is conclusive on all the world: Ottinger v. Ottinger, 17 Serg. & R. 142. For this reason it is the duty of the court to see that all persons interested are brought in before a decree is made: Miller's Appeul, 159 Pa. St. 562. If this is not done, or if a compromise is effected without notice to any of those interested, and a verdict taken in favor of the will in pursuance of such 434 compromise, the verdict will be set aside on application of the omitted or neglected party: Hambleton v. Yocum, 108 Pa. St. 304; or the omitted party may take another appeal if the time allowed has not elapsed: Miller's Appeal, 159 Pa. St. 562.

From this it results that no contestant can compromise any thing beyond his or her own personal interest in the contest, and can be entitled to ro more than his or her distributive share in a sum received by way of general compromise. This was said in substance by the late Justice Gordon in the opinion delivered in Hambleton v. Yocum,108 Pa. St. 304, and seems to result necessarily from the nature of the proceeding.

The interest of Lydia Probst was identical with that of Mrs. Seip and Mrs. Knauss. For what reason she was put upon the record as a codefendant with the proponent of the will that disinherited her it is probable that no one since the death of Seip can tell. But wherever her agent placed her

on the record, her interest was identical with that of her sisters. She had the same right to appeal from the decree of probate, and the same motive for doing so. There could have been no settlement made without her consent given personally or through her agent. Her acquiescence in its terms was a surrender of her right to contest the will, and her distributive share of the net results of the compromise stood to her in place of her right to contest. In such case the law would presume her joinder with her sisters in the compromise to have been upon the same terms and conditions assented to by them, and that the sum received was to be divided in conformity with the intestate laws. This would shift the burden of proof, and impose on her sisters the duty of showing some contract, release, or state of facts sufficient to rebut the legal presumption and strip her of her rights as "a person interested” in the estate of her half brother.

The decree appealed from is reversed, the record remitted, and a procedendo awarded.

ATTORNEY AND CLIENT_PRIVILEGED COMMUNICATIONS. If two or more persons consult an attorney at law for their mutual benefit, and make statements in bis presence, he may disclose such statements in any controversy between them or their personal representatives or successors in interest, but not in controversies between them, or either of them and third persons: · Hurlburt v. Hurlburt, 128 N. Y. 420; 26 Am. St. Rep. 482, and note in which similar cases are collected.



not the independent contractor, is liable for injury arising from neglio gent construction of the work if the owner retains and exercises the right to direct the manner in which the details of the work shall be performed, but the contractor is liable if the power of the owner to direct the construction is confined to the result of the work without

any control over the manner in which it is done, INDEPENDENT CONTRACTORS — NEGLIGENCE – LIABILITY AFTER ACCEPT

ANCE OF WORK.-If an employee at the time of assuming possession of work from an independent contractor knew, or ought to have known, or from a careful examination could have known, that there was any defect in the work, he is responsible for any injury caused to a third


ANCE OF WORK.-If an accident happeas or injury is sustained after

work done by an independent contractor has been accepted by tho employer, and he has resumed possession, no recovery can be had by : third party against the contractor for negligence in the construction of the work. 0. H. Meyers, R. I. Jones, and R. C. Stewart, for the appellant.

W. S. Kirkpatrick and H. W. Scott, for the appellee.

571 DEAN, J. The church of plaintiff is a large brick building on the northwest corner of Second and Bushkill streets, in the city of Easton. On January 2, 1891, Bushkill street, in front of the church, commencing at the line of Second street and extending along the street for seventy-five to eighty feet, caved in, taking with it a portion of the pavement. A large sewer and the water main of the Lehigh Water Company were located longitudinally on Bushkill street, and, after the cave-in, were found to be broken. A great quantity of water from both flowed toward the church, undermined the pavement and saturated the foundation, causing very serious damage to the property.

The plaintiff alleged the damage was caused by the negligent construction of the sewer in this: The church servicepipe connecting with the water-main had broken, and the water flowing therefrom had broken in the sewer, undermined the pavement, and damaged the foundation, before being per. ceptible from the surface; the ground being frozen at the time, until the cave-in, the crust was not disturbed; the ser. vice-pipe broke, it was alleged, because, in constructing the Bewer, the 572 trench was negligently filled up-the plank sheeting, supporting temporarily the sides of the excavation during construction, being left in, and the cross-timbers per. mitted to remain resting on the service-pipe, and then the filling up done by puddling instead of tamping. As a result, when the earth settled, the weight wrenched off the service pipe from its connection, and the injury followed.

The plaintiff held the defendants answerable for the consequences of this negligent work at the sewer, because it was averred they had, as independent contractors with the city of Easton, constructed it under a written contract made the 18t of April, 1890, in pursuance of which contract they had finished the work about June 12th following.

At the trial there was much evidence on both sides on tho questions: 1. Was the injury caused by the negligent con

struction of the sewer ? 2. If so, then did this negligence consist in following the directions of the city engineer, as provided in the contract ?

The court, in a very full charge, submitted the evidence bearing on both questions to the jury. There was a verdict and judgment for defendants, and then this appeal, with thirty-eight assignments or error, each one of them pressed earnestly at the bar and in elaborate argument in voluminous paper-books.

At the trial below, as the case was presented by counsel, and submitted by the court to the jury, the question of negligence was considered first, and that of answerability of de fendants second. We reverse this order, and inquire, first, whether, under the contract and evidence, the defendants are answerable, regardless of proof of negligent construction.

If the negligence which caused the injury was puddling up of the sewer-trench, and leaving in the sheeting which rested on the service-pipe, was this the act of the city, or that of the defendants as independent contractors? If the city, by the contract, retained control of the method of performing the work, then, to the extent defendants followed the method prescribed, certainly they were not independent.

The city ordinance, under date of 29th of November, 1889, enacts:

“SECTION 1.. ... The department of sewers is hereby authorized to construct the following described sewers in accordance 573 with the adopted map and plan on file in the office of the city engineer.”

Then follows a detailed enumeration of sewers, main and lateral, according to an elaborate plan. The sewer on Bushkill street is called main sewer B. Then section 4 enacts: “The building of said sewers shall be under the supervision and management of the city engineer." Paragraph 47 of the contract stipulates that the sewer shall be constructed according to the plans on file, and according to the grades and lines given by the engineer .... and the sides of the trench shall, at the contractor's expense, be supported by proper timber. work, when required by the engineer, to prevent caving .... and, after the completion of the brick work, shall be carefully filled up and tamped around the sewer in horizontal layers of not over six inches, until the filling reaches a height of one foot above the top of the sewer, and then carried up in horizontal layers of not over nine inches, to the surface of the street, or within such distance of the surface as the engineer

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