Donaldson v. Eaton

• Decision Date: 14 December 1907
• Citation: 136 Iowa 650,114 N.W. 19
• Parties: DONALDSON v. EATON & ESTES.
• Court: Iowa Supreme Court

136 Iowa 650

114 N.W. 19

DONALDSON

v.EATON & ESTES.

Supreme Court of Iowa.

Dec. 14, 1907.

Appeal from District Court, Freemont County; O. D. Wheeler, Judge.

This proceeding to require defendants to refund to plaintiff $2,000 for extortionate fees exacted from him by defendants in excess of a reasonable compensation in their capacity as his attorneys was instituted in the lower court by motion, as authorized by Code, § 3826. After hearing the evidence the lower court dismissed plaintiff's action, and he appeals. Reversed.W. P. Ferguson, for appellant.

W. E. Mitchell, for appellee.

McCLAIN, J.

The evidence, without substantial conflict save as to one point to be hereafter noticed, shows that in November, 1904, the plaintiff, who was 70 years of age, a farmer and a resident of Freemont county, consulted defendants, as attorneys practicing in that county, with reference to difficulties and disagreements with his wife, to whom he had been married about eight months, and expressed to them the desire for a divorce from his wife in order that she might not have her statutory share of his property should she survive him. The defendants were not able to discover in plaintiff's statement any ground for divorce, and the subject, for the time being, was dismissed. About December 1st following, plaintiff consulted defendants again with reference to a threatened proceeding for an annulment of marriage on the part of the wife, in which he understood she would ask $10,000 as alimony, and the homestead, consisting of a house and lot in town of the value of about $1,000. The member of defendant firm thus consulted expressed the belief that no more than $2,000 would probably be allowed to the wife. In this conversation plaintiff disclosed to defendants that his wife had a cause for the annulment of marriage on the ground of his impotency, and expressed desire that she procure such annulment, saying that he was worth about $38,000, and that another person of larger means had settled with his wife for $5,000, and expressed a willingness to settle for that amount. On December 3d plaintiff, with one of the defendants, went to the town of plaintiff's residence, where his wife was occupying the homestead, and the attorney had a conversation with the wife, not in the presence of the plaintiff, with reference to the threatened legal proceedings. The attorney reported to the plaintiff that the wife was claiming $10,000 and the homestead, and that she would not settle for less without consulting her attorney, who had already been sent for. The attorney arrived in the afternoon by train, a conference was held between the wife and her attorney on the one side and the attorney for the plaintiff on the other, plaintiff not being present, and an arrangement was made by which the wife was to bring the action, which was not to be resisted, and was to be allowed $1,200 and the homestead, by way of alimony, and the plaintiff in this action was to pay all costs and expenses, including the fees of the wife's attorney. These terms of settlement were embodied in a written stipulation entitled as in an action and in form an application to the court with reference to the disposition of the property rights and alimony of the plaintiff in case a decree should be granted, and was signed by the respective attorneys for their clients. The conference closed before 7 o'clock in the evening, and the wife's attorney departed on the train. According to the testimony of the member of defendant firm who carried on these negotiations for plaintiff, a written contract between the plaintiff and defendant had been drawn up by him and signed by plaintiff between these two interviews, stipulating as to the compensation to be paid defendants in the event of the successful termination of the proceedings for annulment of marriage, which was in the following terms:

“This agreement made and entered into this 3rd day of Dec. 1904 by and between Eaton & Estes, Attys. of Sidney, Ia., and David Donaldson of Farragut, Iowa, Witnesseth:

That whereas David Donaldson desires a divorce from his wife, Henrietta Donaldson. and an adjustment of the matter of her alimony, at the earliest possible date, now.

The said David Donaldson, hereby agrees to pay to the said Eaton & Estes, the sum of Four Thousand Dollars and to convey to them or to whomsoever they order, his town property in Farragut, Freemont County, Iowa, consisting of one half acre of land in Lot 51, Coy's Addition to said town of Farragut Ia., and the house and all other appurtenances thereunto belonging. The payment of said $4000 and conveyance of said property are in consideration of Eaton & Estes securing for said David Donaldson a divorce from the bonds of matrimony, or of any services of said Eaton & Estes whereby a severing of the bonds of matrimony is secured as between the parties aforesaid, and settlement of all alimony and all claims of said Henrietta against the estate and property of said David Donaldson. It is expressly understood that said $4000 and said property shall include and pay all costs of suit, attorney's fees and all other expenses whatever connected with said divorce proceeding and shall be paid and performed as soon as or upon the procurement of said divorce and settlement of alimony. Witness our hands on the day and date above written, at Farragut, Ia.”

Plaintiff testified that this contract was drawn up and signed in the evening after the conference between his attorney and the wife and her attorney at which the final terms of settlement were agreed upon. But we regard this conflict in the evidence as wholly immaterial. It appears from plaintiff's evidence, which is not contradicted, that after the negotiations of the afternoon his attorney desired that the contract or arrangement, whatever it may have been at that time, with reference to defendants' fees, be modified so as to provide for payment of $5,000 instead of $4,000 as contemplated in the written contract above set out, on account of the fact that the wife's attorney was asking so much. Three days later notice of a proceeding for annulment of marriage was served upon this plaintiff, in which it was stated that the wife asked $2,500 and the homestead by way of alimony. Plaintiff seems to have been surprised that the claim for alimony was so small, and demanded from defendants the written stipulation which had been entered into for by him, which demand was refused, but a copy of the stipulation was given to him, whereupon he notified defendants by letter that they were dismissed from the case, and consulted another attorney. The day before the convening of the term of court in January following, when the case according to the notice was to come on for disposition, plaintiff calledupon defendants at their office with reference to the letter dismissing them from the case; arrangements were made by which defendants were to carry out their contract and have the marriage annulled as provided for in their stipulation, defendants consenting that the new attorney be recognized if compensated by the plaintiff; and on the second day of the term a decree was entered in accordance with the stipulation, save that plaintiff agreed to pay his wife $800 in lieu of conveying to her the homestead, so that the decree provided for...