Lillie v. Andrews

SHAW, J.

Action to recover a sum of money alleged to have been obtained by defendant from plaintiff by means of false and fraudulent representations. Judgment went for plaintiff, from which defendant appeals.

It appears from the findings that defendant, at the time he obtained the money, was attorney for Mrs. Collier who had instituted an action for damages against Margaret Lillie, plaintiff herein, for the alleged alienation of the affections of the former’s husband, who was defendant in an action for divorce brought by his wife. On March 20, 1912, defendant claiming he was authorized so to do, entered into an agreement with plaintiff for the compromise of the suit against her, in accordance with which she deposited with an escrow holder the sum of one thousand five hundred dollars, to be paid defendant Andrews on April 12, 1912, and at the same time plaintiff and Andrews signed and left with the escrow-holder a stipulation wherein it was agreed that the action brought by Mrs. Collier against Mrs. Lillie, plaintiff herein, should be dismissed and that “Mrs. Lillie’s name, nor herself in person,” should not appear in the said divorce case “which is to be tried on the 11th day of April, 1912.” As per stipulation, defendant, as attorney for Mrs. Collier, moved the court to dismiss the action against Mrs. Lillie, .which motion was by the court granted on March 20, 1912. On April 8, 1912, Mrs. Collier, through attorneys substituted for defendant, applied to the court for an order vacating and setting aside the order of dismissal, which application was granted. On April 9th defendant having theretofore directed the escrow-holder to pay to Mrs. Collier nine hundred dollars of the one thousand five hundred dollars so deposited with it by Mrs. Lillie, represented to the latter that the application to have the order dismissing the action vacated and set aside had been by the court denied; whereupon plaintiff, believing and relying upon defendant’s statement instructed the' escrow-holder to pay the sum so deposited with it to Andrews on his demand therefor. Whereupon Andrews de

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manded and received from the escrow-holder the balance of said sum so deposited with it over and above the nine hundred dollars theretofore directed to be paid to Mrs. Collier, and on April fifteenth instructed the escrow-holder to return the nine hundred dollars to Mrs. Lillie. Thereafter plaintiff made demand upon defendant that he repay to her the six hundred dollars thus obtained upon the false representation that the action had been dismissed, and upon his failure so to do brought suit.