Wood v. Porter

• Citation: 56 Iowa 161,9 N.W. 113
• Parties: WOOD v. PORTER.
• Decision Date: 08 June 1881
• Court: Iowa Supreme Court

56 Iowa 161

9 N.W. 113

WOOD

v.PORTER.

Supreme Court of Iowa.

Filed June 8, 1881.

Appeal from Appanoose circuit court.

Action at law. The pleadings and facts of the case, so far as they are necessary to be stated for a proper understanding of the points ruled, sufficiently appear in the opinion. There was a trial to a jury and a verdict and judgment for defendant. Plaintiff appeals.J. C. Coad, for appellant.

Tannehill & Tee, for appellee.

BECK, J.

The petition alleges that plaintiff's wife employed defendant, who is an attorney at law, to prosecute against her husband an action for a divorce and alimony; that in pursuance of his employment defendant did commence such an action, and that plaintiff and his wife, soon after the commencement of the suit, settled all differences between them and became reconciled to each other, and were desirous to have the action for divorce dismissed. Thereupon plaintiff called upon defendant, who had been counsel for both plaintiff and his wife after the commencement of the divorce suit, for the purpose of having the suit dismissed and paying the costs therein, when defendant informed plaintiff that the court had ordered him to pay into court the sum of $208.50 as costs and alimony, and the cause could not be dismissed until that amount had been paid.

It is alleged that these representations were false, and made for the purpose of defrauding plaintiff, who, relying thereon, did pay defendant the sum of $65 in cash, and executed to him a promissory note for the further sum of $93.50, which defendant transferred, before maturity, to a bank having no notice of the fraud of defendant in obtaining the paper. The defendant, in his answer, denies all the allegations of the petition.

2. The court instructed the jury that, to authorize them to find for the plaintiff, they must be satisfied beyond a reasonable doubt that the representations alleged were made by defendant; that they were false, and that defendant knew them to be false, applying to the case the rule of Barton v. Thompson, 46 Iowa, 30. This case we have overruled in Welch v. Jugenheimer, 8 N. W. REP. 673, and the rule therein announced is no longer recognized by this court. The instruction, therefore, must be now regarded as erroneous.

3. The court instructed the jury that defendant was not the attorney of plaintiff in the divorce suit, but was the attorney of the plaintiff's wife. This instruction is the ground of an objection urged by plaintiff....