Farrar v. Farrar

74 N.W. 5, 104 Iowa 621

• Court: Supreme Court of Iowa
• Decided: February 2, 1898
• Status: Published

Opinion

Ladd, J.

The decree of divorce, .allowing one thousand dollars as .alimony, was entered February 5, 1895, and on the same day the defendant married Martha Foss. After this marriage, a draft of one thousand dollar's-, in favor of the latter, was delivered to her by the Cedar Rapids Savings Bank, in pursuance of instructions so to do upon the happening of that event. This she at once indorsed and delivered to Stuart, who paid the plaintiff two hundred and fifty dollars. This motion seeks to compel him to pay the balance into court for her uise and benefit.

I. Farrar first contemplated' obtaining a divorce, but, being advised no just cause existed, induced Ms wife to begin proceedings. They called at Stuart’s office together, and, in his words, “it was then agreed that she would bring the action, and he talked about turning over a certain one thousand dollars. That, was the talk, and was the talk for some time, in connection with this certain one thousand dollars, which was the interest of a certain Miss Martha Foss, with whom Dr. Farrar was then intimate, and who was subsequently to- be his wife. That certain one thousandl dollars was spoken of, but at no time was it talked that it should be the identical one thousand dollars. That thousand was mentione d to induce Mrs. Farrar,&emdash;to show her that there was something,&emdash;that there was a one thousand dollars to get somehow; that there could be a one thousand dollars put in the pot. She then began proceedings.” The plaintiff, up to the time of divorce, was, led to believe, not only that she would be allowed, but would receive one thousand dollars alimony. At that time Stuart paid her two hundred and fifty dollars only, and advised her that the remainder was in notes not due, deposited at the bank. She was not informed of the receipt of the money. Prior to this, he had made one trip to Iowa county with Farrar, and another with Miss 'Foss, to induce the latter’s brother to pay a note of one thousand dollars, owing her, before maturity, and to assure him of Farrar’s good faith in proposing marriage in event a divorce were procured. While doing this, at the instance of Farrar, it was with the understanding that the money to be obtained was for the payment of alimony to the plaintiff. The brother was informed of the purpose for which it was being obtained, and caused it to be sent, as heretofore stated. The draft was in favor of Martha Foss, and was indorsed by her, and delivered to Stuart for the purpose of. paying the judgment, in pursuance of an understanding had by her with Stuart and Farrar. If Stuart and Farrar had a different arrangement, it was not made known to Martha Foss, nor to the plaintiff. Certain it is, that Foss had the right to have the money applied as she wished. It is said that, as Farrar assigned certain accounts to' Miss Foss to secure the payment of this money, he became the owner thereof, and entitled to direct its disbursement. But the money was procured for a specific purpose, and the security given to indemnify, in the event of the payment of the defendant’s obligation. This Stuart fully understood, and that it was not to be paid to Farrar, but to the plaintiff. Farrar never acquired any interest in it, save that of having it applied on the judgment. Stuart’s action in going to' Iowa county, and assisting in procuring the money, cannot be justified on any other ground than that of obtaining for his client, the plaintiff, the amount to be allowed her. On any other hypothesis, he was simply conniving in the arrangement for a marriage of a party before ,any lawful right existed for making such an arrangement. Though employed by the defendant, he appeared in the action for the plaintiff, and was bound to act with perfect fidelity in the care and protection, of all her interests pertaining to- the suit. The testimony of Eeed and! Gale shows that, even after receiving the draft, he understood it to be for the appellee. If he entered into any secret arrangement with' Farrar to- divert this money from the purpose for which it was paid, this did not affect the right of Foss to have the money applied as agreed, or of the plaintiff to have it appropriated for ■the purpose intended by Foss. It is: incredible that the attorney, .after .arranging for the payment and assuring his client that it would be paid, and after indicating to the brother its purpose, and understanding: the application Foss desired, should yet enter into an agreement for the appropriation of the money, when received, for the benefit of one to whom he owed no duty, legal or moral. If true, however, it conferred upon him no authority to pay Farrar or his creditors any portion of the money received for the appellee, and he must restore to her that which fidelity and the die ■ tates of common honesty require.

II. The district count allowed the attorney the costs paid, twelve dollars, one hundred dollars paid to Farrar, and fifty dollars for services rendered in procuring the decree of divorce. As the plaintiff was liable for the costs, these were properly credited. ■ Stuart, however, made no claim that the plaintiff was indebted to him for attorney’s fees'. On the contrary, he says, “it was expressly understood I should not charge her a cent.” This being true, he ought not to have been allowed anything therefor. As already stated, he was not authorized to pay Farrar the one hundred dollars, or any of his debts. Wé think he ought to have been required to pay into tlie court seven hundred and sixty-three dollars, with interest at six per cent, from February 5,1895, instead of the amount fixed by the district court; and the cause will be' remanded, with instructions to modify its order accordingly. — Affirmed on Stuart’s appeal'. Reversed on plaintiff’s appeal.