apply to the one in control of a dummy corporation. Renault v. L. N. Renault & Sons, 3 Cir., 1951, 188 F.2d 317; Ritz Realty Corp. v. Eypper & Beckmann, Inc., 1927, 101 N.J.Eq. 403, 138 A. 900, affirmed on opinion below E. & A. 1928, 103 N.J.Eq. 24, 141 A. 921; 13 Am.Jur. Corporations, Sec. 7 and 8; 19 C.J.S., Corporations, page 471, 1004. But regardless of this, and even assuming the release to be invalid, the plaintiff corporation by later using the settlement proceeds, clearly ratified the action of its President in obtaining this money by such settlement. Murtland Holding Co., v. Egg Harbor Commercial Bank, 123 N.J.Eq. 117, 122, 196 A. 230; Royal Blue Coaches, Inc, v. Delaware River Coach Lines, Inc., Ch. 1947, 140 N.J.Eq. 19, 52 A.2d 763; Throp v. Payne Bros., Inc., E. & A. 1914, 86 N.J.L. 304, 90 A. 1048; Morris County Bldg. & Loan Ass'n v. Walters, E. & A. 1937, 123 N.J.Eq. 548, 198 A. 756; 19 C.J.S., Corporations, page 500, § 1020. The Beach Company is therefore bound by the settlement, just as is Beach, the man who put it through.
It is not clear on the record whether plaintiff claims duress, coercion or fraud on the part of plaintiff's attorneys, Brown and McGeehan, on this occasion, or not. On pre-trial it indicated that such would be a defense. But the only evidence in that regard comes from the lips of Atwater, and plaintiff's counsel is far from clear on the record as to whether or not he desired Atwater's testimony to be considered. At one time he said yes, at another time he indicated the contrary.
But either way the result is the same. For, as seen above, the claim of privilege, the sole basis of objection to Atwater's testimony, and thereupon to Brown's testimony as to this later conference between Beach, Brown and Atwater, applies simply to so much of the testimony as goes to the discussion between Beach and Brown as to the desirability of settlement, legally and factually, i.e., its motivation. It does not lie as to Beach's instructions to Brown to carry out the settlement, as seen above. And it is only the latter, plus the inferences from what happened in open court, that this Court has so far considered. Upon such basis the consummation of the settlement is clear.
On the other hand, let us give plaintiff the benefit of the remaining alternative -- the consideration of Atwater's testimony. Of course, if Atwater's testimony is to be considered, at least insofar as the communications as to the motivation for settlement are concerned between Beach and Brown, at Brown's office, these normally confidential communications between attorney and client are immediately divested of their privilege if Atwater, as the agent of Beach, testifies in open court as to them. This act as Beach's agent is that of Beach, and Beach, by testifying and telling the public of these confidential communications, has turned what was once a confidence into public property. He cannot open the door to part of the facts and close it as to the remainder. 8 Wigmore, (3rd Ed.) Sec. 2327; Shawmut Mining Co. v. Padgett, 1918, 132 Md. 397, 104 A. 40; Wild v. Payson, D.C.S.D.N.Y.1946, 7 F.R.D. 495; Roper v. State, Sup.Ct.1896, 58 N.J.L. 420, 33 A. 969.
But if Atwater is not to be considered as Beach's agent, but as a mere third party, there has never been any privilege in that regard at all. For these communications between Beach and Brown were in the presence of this third party, and hence not confidential when made. 8 Wigmore (3rd Ed.) Sec. 2311; Roper v. State, Sup.Ct.1896, 58 N.J.L. 420, 33 A. 969; American Farm Agency Ind. v. Investors Management Corp., E. & A. 1932, 108 N.J.L. 255, 158 A. 392; LaMoore v. U.S., 9 Cir., 1950, 180 F.2d 49.
When we accordingly consider Atwater's testimony in that regard, we not only find it clearly contradicted by that of Brown, but the admitted facts in that regard support Brown, not Atwater. Had Brown gone to Beach's home to put the settlement through, then it might be argued that it was Brown who was urging Beach to settle. But on the contrary, it was Beach who, surprisingly, in view of their recent falling out, came to Brown's office. Obviously, it was Beach, therefore, not Brown, who was urging the settlement. It passes all reason to conclude that the one who was urging the settlement was coerced into doing so by the person whom he asked to help put the settlement through.
Finally, plaintiff claims the settlement was coerced by the Court. The sole evidence as to this rather unusual claim is the fact that Beach urged Brown to settle -- and that quickly -- shortly after the above hearing, and that Beach told Brown, according to Atwater, that he was 'going to comply with Judge Fake's suggestion to put through the settlement because of his high regard of Judge Fake'. Does this sound like coercion, particularly in the absence of either an order or a judgment of the Court? With the courts open for an appeal from any such 'suggestion' by the Court -- the very appeal ultimately taken by other attorneys, as above -- how can plaintiff justify any such claim? The authorities cited in that regard are either utterly inapposite, or so different in fact as to indicate the lack of substance in such claim. For instance, in Harshaw v. Dobson, 1870, 64 N.C. 384, the Judge in question, in the South in the heat of the Civil War, threatened the party coerced with indictment for crime and imprisonment unless he performed the act in question. Where is the threat of indictment and imprisonment by the Judge here, for whom Beach had such a 'high regard'? In Peyser v. Mayor, etc., of City of New York, 1877, 70 N.Y. 497, the Court indicates that judicial coercion arises only when judgment has been entered and execution is being attempted, so that the coercive action cannot be avoided even by an appeal. In the case at bar there was no judgment nor execution, not even a court order. And an appeal, as ultimately taken, was of course available, and would have sufficed to destroy any coercive effect of the action of the Court.
Since a valid agreement of settlement, and settlement, have been effectuated in the controversy involved in the complaint in the above entitled cause, judgment will go, in accordance with the above decision of the United States Court of Appeals for the Third Circuit, for the defendants, both on the limited preliminary issue of accord and satisfaction, and as to the complaint herein.
The facts herein stated and the conclusions of law herein expressed shall be considered the findings of fact and the conclusions of law required by F.R.C.P. 52.