¶1The opinion of the court was delivered by
¶2We think Orcutt, though made a witness by the statute, cannot be compelled to disclose any consultation which he may have had with his counsel in relation to the cause.
¶3*708The rule should be the same as it would have been if the counsel had been called to prove the consultation.
¶4We do not see that it is possible for the plaintiff to recover upon his present declaration for the four hundred and sixteen dollars and eighty-seven cents, which, by the terms of the assignment of the contract A, the defendants were to pay the plaintiff upon the-decease of Betsey Gould. The consideration for this promise grows out of the assignment of that contract to these defendants by Hemenway. The contract is executory, and the plaintiff’s claim, in this particular, if he has any, must be for damages for the non-performance of the contract by the defendants, and, by a special action on the contract. Nothing like money, as to this item of claim, has been had and received by the defendants, to the use of the plaintiff; nor lent and advanced by the plaintiff for the defendants. As to the items of sixty dollars and of twenty-five dollars, which the plaintiff paid to Davis, and which the defendants had bound themselves to pay, by the provisions in the assignment of the lease from Hemenway to them, we see no reason why the money counts' are not adapted to so much of the plaintiff’s claim, if he has one that can be established, and, as the case must, at all events, be opened, we are not disposed to express any opinion on this part of the case. The objection to these items seems to be that the plaintiff was not responsible to Davis for them, he having assented to the assignment. of the lease by Hemenway to the defendants, when the same was made; and that the annual annuity to be paid the widow was not apportionáble.
¶5Judgment reversed and the cause remanded to the county court,