HOLLOWAY, Circuit Judge.
This is an appeal from a judgment against appellant John W. Taylor and other defendants in a suit under § 10(b) of the Securities Exchange Act of 1934, Rule 10b-5 of the Securities and Exchange Commission, the Utah Blue Sky Law, Utah Code Ann. § 61-1-22(1) (b) (1953), and common law fraud principles. The judgment recovered was for general damages of $263,800, punitive damages of $50,000 and attorney’s fees of $15,000. A separate appeal consolidated with this proceeding and appeals by other parties have all been dismissed and we are concerned solely with that of appellant Taylor. For convenience we will refer to the parties as designated in the trial court.
The complaint centered around an agreement for sale of an office building in Salt Lake City by plaintiffs to defendant Texas Uranium Corporation. Discussions by plaintiff Donihue with the defendants Jenson, Lund, Taylor and others began in May, 1968, and the written agreement was signed shortly. In essence it provided that the purchase price for the building would be $400,000; that the buyer was to assume a mortgage of $125,000 on the building and issue to the seller-plaintiffs investment stock of Texas Uranium; that the value assigned to the stock was twenty cents per share, or a total value of $275,000; and that the buyer would pay certain taxes.
In addition proof of the plaintiffs tended to show that there was also a contemporaneous oral agreement. The plaintiffs testified that the oral agreement was made separately because defendant Lund explained that it could not [1332]*1332lawfully be made a part of the contract involving transfer of the stock. This oral understanding was for payment of $35,000 in cash and delivery of two automobiles in connection with the sale of the office building, and there was also an understanding that $10,000 in cash would be paid on the related sale of a motel to Texas Uranium, but that transaction is not involved on this appeal.
The gist of the misrepresentations claimed was that the plaintiffs were told that the Texas Uranium stock was registered with the Securities and Exchange Commission, which was false; that they were misinformed as to the time the stock had to be held before transfer; that the corporation owned assets of over $8,000,000, including certain business assets, which in fact were nonexistent; and that the corporation owned certain producing mines and business interests, which were not as represented. It was generally on the basis of such proof that the jury returned the verdict against defendants and we will detail the facts further in discussing the issues raised by appellant here.
First, Taylor argues that there was error in admission of prejudicial testimony in violation of the attorney-client privilege. The contention is based on testimony of Mrs. Hansen, secretary to defendant Lund. She testified that she heard a conversation between defendants Lund and Jenson shortly after Mr. Jenson had a conversation with plaintiff Donihue. She was permitted to testify that defendant Jenson remarked to defendant Lund that plaintiffs Donihue and Young “weren’t so smart; that they could possibly end up with the properties for nothing.”
Counsel for defendants Taylor and Texas Uranium objected, arguing that the statement was heard by Mrs. Hansen in her capacity as secretary to Mr. Lund, attorney for Texas Uranium. Appellant Taylor now says that the trial court instructed that the defendants were in the same status as to liability; that if any defendant should have a judgment against him, then all of the defendants should be held liable; and that, therefore, the privilege extended to each of the co-defendants, except the attorney, and may be asserted by appellant Taylor. We cannot agree and conclude that the contention on the privilege must be rejected.
An attorney cannot, without the consent of his client, be examined as to any communication made by the client to him or his advice given in the course of his professional employment. Utah Code Ann. § 78-24-8(2) (1953); see Wilcoxon v. United States, 231 F.2d 384 (10th Cir.), cert. denied, 351 U.S. 943, 76 S.Ct. 834, 100 L.Ed. 1469. Moreover, the privilege does include the communications heard by a secretary or clerk of the attorney, as § 78-24-8(2) also provides. United States v. Kovel, 296 F.2d 918 (2d Cir.).
The trial court overruled the privilege objection for several reasons. First, he held that by examining the attorney, Mr. Lund, the corporation had waived the privilege. Second, he found that there was proof indicating that Mr. Lund was acting as a participant in the transactions and that the consultation was with one interested other than as an attorney. We are satisfied that the record shows that there was a waiver that binds Taylor. See Steen v. First National Bank of Sarcoxie, 298 F. 36 (8th Cir.). We also feel that the record sustains the view that the communication was not privileged because it was made to one who was acting as a participant. United States v. Vehicular Parking, 52 F.Supp. 751, 753 (D.Del.). See also Lowy v. C. I. R. 262 F.2d 809 (2d Cir.). The court also added that there was evidence that this was a communication to facilitate a fraud so that it should not be suppressed, but this further ground need not be considered. In sum, we are satisfied that the record [1333]*1333sustains the ruling and that it was proper as a matter of law.1
On this appeal there is an added reason why the privilege argument of Taylor is without merit. Texas Uranium is no longer a party to the appeal. Mr. Lund was shown to have been an attorney for Texas Uranium and Jenson, but not to have been counsel for Taylor. “The rule is for the protection of the client. . . .” Wilcoxon v. United States, supra, 231 F.2d at 386. Thus, Taylor may not assert the privilege as a ground for reversal. See In re Young’s Estate, 33 Utah 382, 94 P. 731, 732; United States v. Le Pera, 443 F.2d 810, 812 (9th Cir.); McCormick, Law of Evidence § 96 (1954); 8 Wigmore, Evidence § 2196 (1961).
Appellant Taylor’s second proposition on appeal is that the court erred by instructing that if any of the defendants should be found liable then all should be found liable. The challenged portion of the charge is set out in the margin.2 This instruction relates also to the form of verdict submitted which did not provide for separate verdicts against individual defendants but submitted one form for a verdict assessing damages [1334]*1334against all defendants, if the jury found for the plaintiffs. Appellant vigorously argues that the defendants were entitled to a jury finding on the factual question as to whether the defendants were agents of one another, and as to whether each defendant was severally liable, and that the charge and form of verdict decided these questions and improperly removed them from the jury’s deliberations.
While these contentions would be forceful in a proper case, we cannot agree that they are valid here.
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HOLLOWAY, Circuit Judge.
This is an appeal from a judgment against appellant John W. Taylor and other defendants in a suit under § 10(b) of the Securities Exchange Act of 1934, Rule 10b-5 of the Securities and Exchange Commission, the Utah Blue Sky Law, Utah Code Ann. § 61-1-22(1) (b) (1953), and common law fraud principles. The judgment recovered was for general damages of $263,800, punitive damages of $50,000 and attorney’s fees of $15,000. A separate appeal consolidated with this proceeding and appeals by other parties have all been dismissed and we are concerned solely with that of appellant Taylor. For convenience we will refer to the parties as designated in the trial court.
The complaint centered around an agreement for sale of an office building in Salt Lake City by plaintiffs to defendant Texas Uranium Corporation. Discussions by plaintiff Donihue with the defendants Jenson, Lund, Taylor and others began in May, 1968, and the written agreement was signed shortly. In essence it provided that the purchase price for the building would be $400,000; that the buyer was to assume a mortgage of $125,000 on the building and issue to the seller-plaintiffs investment stock of Texas Uranium; that the value assigned to the stock was twenty cents per share, or a total value of $275,000; and that the buyer would pay certain taxes.
In addition proof of the plaintiffs tended to show that there was also a contemporaneous oral agreement. The plaintiffs testified that the oral agreement was made separately because defendant Lund explained that it could not [1332]*1332lawfully be made a part of the contract involving transfer of the stock. This oral understanding was for payment of $35,000 in cash and delivery of two automobiles in connection with the sale of the office building, and there was also an understanding that $10,000 in cash would be paid on the related sale of a motel to Texas Uranium, but that transaction is not involved on this appeal.
The gist of the misrepresentations claimed was that the plaintiffs were told that the Texas Uranium stock was registered with the Securities and Exchange Commission, which was false; that they were misinformed as to the time the stock had to be held before transfer; that the corporation owned assets of over $8,000,000, including certain business assets, which in fact were nonexistent; and that the corporation owned certain producing mines and business interests, which were not as represented. It was generally on the basis of such proof that the jury returned the verdict against defendants and we will detail the facts further in discussing the issues raised by appellant here.
First, Taylor argues that there was error in admission of prejudicial testimony in violation of the attorney-client privilege. The contention is based on testimony of Mrs. Hansen, secretary to defendant Lund. She testified that she heard a conversation between defendants Lund and Jenson shortly after Mr. Jenson had a conversation with plaintiff Donihue. She was permitted to testify that defendant Jenson remarked to defendant Lund that plaintiffs Donihue and Young “weren’t so smart; that they could possibly end up with the properties for nothing.”
Counsel for defendants Taylor and Texas Uranium objected, arguing that the statement was heard by Mrs. Hansen in her capacity as secretary to Mr. Lund, attorney for Texas Uranium. Appellant Taylor now says that the trial court instructed that the defendants were in the same status as to liability; that if any defendant should have a judgment against him, then all of the defendants should be held liable; and that, therefore, the privilege extended to each of the co-defendants, except the attorney, and may be asserted by appellant Taylor. We cannot agree and conclude that the contention on the privilege must be rejected.
An attorney cannot, without the consent of his client, be examined as to any communication made by the client to him or his advice given in the course of his professional employment. Utah Code Ann. § 78-24-8(2) (1953); see Wilcoxon v. United States, 231 F.2d 384 (10th Cir.), cert. denied, 351 U.S. 943, 76 S.Ct. 834, 100 L.Ed. 1469. Moreover, the privilege does include the communications heard by a secretary or clerk of the attorney, as § 78-24-8(2) also provides. United States v. Kovel, 296 F.2d 918 (2d Cir.).
The trial court overruled the privilege objection for several reasons. First, he held that by examining the attorney, Mr. Lund, the corporation had waived the privilege. Second, he found that there was proof indicating that Mr. Lund was acting as a participant in the transactions and that the consultation was with one interested other than as an attorney. We are satisfied that the record shows that there was a waiver that binds Taylor. See Steen v. First National Bank of Sarcoxie, 298 F. 36 (8th Cir.). We also feel that the record sustains the view that the communication was not privileged because it was made to one who was acting as a participant. United States v. Vehicular Parking, 52 F.Supp. 751, 753 (D.Del.). See also Lowy v. C. I. R. 262 F.2d 809 (2d Cir.). The court also added that there was evidence that this was a communication to facilitate a fraud so that it should not be suppressed, but this further ground need not be considered. In sum, we are satisfied that the record [1333]*1333sustains the ruling and that it was proper as a matter of law.1
On this appeal there is an added reason why the privilege argument of Taylor is without merit. Texas Uranium is no longer a party to the appeal. Mr. Lund was shown to have been an attorney for Texas Uranium and Jenson, but not to have been counsel for Taylor. “The rule is for the protection of the client. . . .” Wilcoxon v. United States, supra, 231 F.2d at 386. Thus, Taylor may not assert the privilege as a ground for reversal. See In re Young’s Estate, 33 Utah 382, 94 P. 731, 732; United States v. Le Pera, 443 F.2d 810, 812 (9th Cir.); McCormick, Law of Evidence § 96 (1954); 8 Wigmore, Evidence § 2196 (1961).
Appellant Taylor’s second proposition on appeal is that the court erred by instructing that if any of the defendants should be found liable then all should be found liable. The challenged portion of the charge is set out in the margin.2 This instruction relates also to the form of verdict submitted which did not provide for separate verdicts against individual defendants but submitted one form for a verdict assessing damages [1334]*1334against all defendants, if the jury found for the plaintiffs. Appellant vigorously argues that the defendants were entitled to a jury finding on the factual question as to whether the defendants were agents of one another, and as to whether each defendant was severally liable, and that the charge and form of verdict decided these questions and improperly removed them from the jury’s deliberations.
While these contentions would be forceful in a proper case, we cannot agree that they are valid here. As the trial court’s charge says, the form of verdict was submitted with the consent of the parties. Moreover, there was no objection made after the giving of the court’s instruction on this point. The defendants apparently were willing to go the jury on the basis that they were all in the same boat.3 Therefore a challenge may not now be made to this instruction and the form of verdict. Rule 51 Fed.R.Civ.P.; United States v. Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391, 80 L.Ed.2d 555; Murphy v. Dyer, 409 F.2d 747 (10th Cir.).
Third, Taylor argues that the plaintiffs failed to sustain their burden of proof of common law fraud and that the trial court failed to instruct on all the elements of such a claim. Taylor’s brief stresses the contention that the several elements of such fraud under Utah law were not expressly covered by the charge.
We cannot agree that the trial court failed to instruct sufficiently on fraud. The gist of such a claim does include some nine elements as stated by the Utah Supreme Court; that a representation was made; that it concerned an existing material fact; that it was false; that the person making the representation knew it to be false or made the statement recklessly, knowing he had insufficient knowledge on which to base the representation; that it was made to induce action; that the other party acted on it reasonably and in ignorance of its falsity; that the other party did in fact rely on the statement; that he was induced to act; and that he thereby suffered injury and damage. See Pace v. Parrish, 122 Utah 141, 247 P.2d 273; Stuck v. Delta & Water Co., 63 Utah 495, 227 P. 791; Estate Counseling Service, Inc. v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 303 F.2d 527 (10th Cir.).
The essential instructions of the trial court on liability and damages are set out in the margin.4 In the [1335]*1335charge the court did not separate the different types of claims asserted by the plaintiffs under the Federal and Utah Securities Acts and common law fraud. Instead he stated together the required elements of the various theories for recovery. From an examination of the charge as a whole on liability and damages, we are satisfied that the instructions substantially complied with the requirements of Utah law as to common law fraud. Moreover, there was no objection by Taylor to the instructions on these grounds. Since the charge substantially followed the Utah law and was not claimed to be defective in these respects by Taylor, we are satisfied that no reversible error is shown. Rule 51 Fed.R.Civ.P.; United States v. Atkinson, supra; Murphy v. Dyer, supra. We also feel that the proof of these common law fraud elements was sufficient as to Taylor.5 Therefore, we conclude that Taylor’s contentions on the fraud claim are untenable.
Fourth, Taylor contends that the trial court erred by failing to instruct the [1336]*1336jury as to how damages were to be measured. He says the benefit of the bargain rule was improperly applied instead of the out of pocket rule applicable in the Federal courts, relying on Estate Counseling Service, Inc. v. Merrill Lynch, Pierce, Fenner & Smith, Inc., supra, and Chaney v. Western States Title Insurance Co., 292 F.Supp. 376 (D. Utah). And Taylor argues that the value of the building conveyed to the defendants was not $400,000, as used by the jury in calculating damages, since that amount was greatly exaggerated and the plaintiffs were out only $25,000 which they originally paid for the building.
The essential facts on the damages question are simple. The agreement in evidence said that the purchase price for the building was $400,000, with payment to be made by the buyer assuming the $125,000 mortgage thereon and delivery of the Texas Uranium common stock of a value of $275,000. Also there was in evidence a financial statement of the corporation showing the building’s value at $400,000 in August, 1968. As credits against recovery of the value of the building which they conveyed to the defendant Texas Uranium, the plaintiffs conceded credit of the $125,000 mortgage assumed, which reduced to $275,000 the recovery sought. In addition the plaintiffs conceded credits for $6,500 they received from the sale of some of the free trading stock given them by defendants, $4,500 as the value of an automobile delivered, and $200 in cash received from Taylor. These additional credits amounting to $11,200 further reduced the recovery sought from $275,000 down to $263,800. It was this amount which was accepted by the jury and awarded as general damages to the plaintiffs in the verdict.
In submitting the damages issue to the jury the trial court in essence charged that the plaintiffs would be entitled to damages that have proximately resulted from false statements, if the other elements of the case were established. The jury was told that it could consider the $400,000 purchase price agreed on by the parties, and that they might take into consideration the financial statement indicating the same amount as a declaration by the defendants that could be considered by them for such weight as they thought it entitled to. The court also referred to the credits outlined above which reduced the damages recoverable by the plaintiffs.
We feel there is no problem here as to whether the benefit of the bargain rule or the out of pocket measure of damages was applied, as there was in Estate Counseling Service, Inc. v. Merrill Lynch, Pierce, Fenner & Smith, Inc., supra. The Texas Uranium stock received by the plaintiffs was tendered to the defendants and refused and then deposited in court, as the pretrial order states. The remaining consideration received by the plaintiffs — $200 in cash and the car and some free trading stock that had been sold — was not returned to the defendant but was properly accounted for by the credits given the defendants. See Bellefeuille v. Medeiros, 335 Mass. 262, 139 N.E.2d 413, 415-416. The building could not be returned by the defendants to the plaintiffs because it had been taken by the mortgagee. The award to the plaintiffs for the value of the building was proper as rescissional damages. See Myzel v. Fields, 386 F.2d 718, 741-742 (8th Cir.). Moreover the damages determined under the court’s charge were based on the proof of the value of the building which was what the plaintiffs lost. Therefore, we are satisfied there was no prejudice to the defendants by the instruction on damages and the actual award, which is sustained by the proof.
Taylor also argues that the determination of the building’s value and the loss to the plaintiffs should have been based on the building’s original cost to them, saying in his brief that this was approximately $25,000. No such proof was offered to challenge that of the value at $400,000. The question of the value of the building was properly [1337]*1337submitted to the jury and its verdict is supported by the record.
Fifth, Taylor contends that the trial court erred by instructing the jury to award attorney’s fees if they returned a verdict for either general or punitive damages. The court did so instruct the jury and a proper objection thereto was made. If no general damages had been found, the point might have substance. However under the Utah Blue Sky Law the plaintiff may recover the consideration paid for the security, with interest and a reasonable attorney’s fee, less certain credits. See Utah Code Ann. § 61-1-22(b). Such recovery was allowed in this ease by the award of general damages and the additional award of attorney’s fees was therefore proper. The $15,000 amount was stipulated to be a reasonable fee. Thus, we feel this objection to the instruction is without merit.
Lastly Taylor argues that the instructions were in error with regard to permitting exemplary damages and attorney’s fees and that they may not be recovered in addition to general damages. His contention is primarily grounded on the provision of § 28(a) of the Securities Exchange Act of 1934, 15 U.S.C.A. § 78bb. He also says that permitting recovery of exemplary damages and attorney’s fees allows double recovery since the punitive award is intended to include the fee, relying on Tullock v. Mulvane, 184 U.S. 497, 22 S.Ct. 372, 46 L.Ed. 657.
15 U.S.C.A. § 78bb(a) provides in pertinent part as follows:
“(a) The rights and remedies provided by this chapter shall be in addition to any and all other rights and remedies that may exist at law or in equity; but no person permitted to maintain a suit for damages under the provisions of this chapter shall recover, through satisfaction of judgment in one or more actions, a total amount in excess of his actual damages on account of the act complained of.”
Here we have a case in the Federal Court because of the assertion of the claim under § 10(b) and Rule 10b-5, 17 C.F.R. § 240.10b-5. With it are joined the claims under the Utah Blue Sky Law and common law fraud principles which may also be heard because of pendent jurisdiction of the claims. Here the question is whether the restriction of § 28(a) operates to limit the recovery to actual damages where the action maintained depends on the federal claim as the basis of jurisdiction. The question is not free from doubt, but we feel that the statute did not intend to bar the award of punitive damages and attorney’s fees in a case such as this.
As we have held, the instructions here in substance covered the elements of common law fraud as required by Utah law. The charge also embraced the elements of claims under the Federal and Utah securities laws. The elements of all three claims were combined in a single statement to the jury of the requirements for the plaintiffs to recover general damages, and no alternative bases for such recovery were submitted. Therefore no particular label can be attached to the general damages award made, to the exclusion of other theories. Nevertheless under the charge it is clear that the elements of a Utah Blue Sky claim and a common law fraud claim had to be found to arrive at the general damages award. Thus the elements of valid state claims were implicitly found to exist.
This court has examined § 28(a) in deciding whether punitive damages are allowable along with a claim asserted solely under Rule 10b-5. We found that the federal statute provides no clear answer, but that from the policies underlying the Act and the purpose of exemplary damages, punitive damages are not recoverable in connection with such a federal claim. deHass v. Empire Petroleum Co., 435 F.2d 1223 (10th Cir.).
Schaefer v. First National Bank of Lincolnwood, 326 F.Supp. 1186, 1193 (N.D. Ill.), supports the position of appellant Taylor and denies recovery of [1338]*1338punitive damages with a common law count joined in a similar action. Gann v. Bernzomatic Corp., 262 F.Supp. 301, 304 (S.D.N.Y.), holds, however, that if such a common law claim is established in such circumstances, punitive damages under state law may be awarded. See also Hecht v. Harris Upham & Co., 283 F.Supp. 417, 444-445 (N.D.Cal.), modified on other grounds, 430 F.2d 1202 (9th Cir.). The legislative history provides nothing additional, having only an observation similar to the statutory language. Professor Loss has concluded that the effect of § 28(a) is to allow a plaintiff to use any combination of non-statutory and statutory remedies, although he is not allowed more than the maximum amount recoverable under any of the applicable remedies or his actual damages, whichever is greater. 3 L. Loss, Securities Regulations 1624.
Since the statute saves rights and remedies under state law and the elements of such claims were necessarily found by the jury here, we conclude that § 28(a) does not bar this award of punitive damages and attorney’s fees. By so construing the statute, effect is given both to the statute’s policy for preserving state remedies and to some limitation on damages recoverable. A reasonable limiting effect is given by interpreting § 28(a) as meaning that if a federal claim is maintained as here, recovery of actual damages twice on separate claims in the action is prohibited, but that if the elements of a state claim are necessarily found to exist, punitive damages and attorney’s fees allowed under state law are not barred. We feel we should construe the Act in a way that would save these rights under state law. Therefore, we conclude we should sustain the punitive damages and attorney’s fees awarded here.
The trial court instructed the jury that if the representations were malicious, oppressive and intentional, punitive damages might be awarded and thus imposed the requirements for an exemplary damages award under Utah general law. See Powers v. Taylor, 14 Utah 2d 152, 379 P.2d 380, 382. As discussed above the Utah Blue Sky statutes also authorize the award of attorney’s fees. Therefore we cannot agree that these portions of the damages awarded were improper under the state law as a double recovery.
We are satisfied that no reversible error has been demonstrated and the judgment is affirmed.