Watson v. Calvert Building & Loan Ass'n

Schmucker, J., delivered the opinion of the Court. This appeal brings before us for consideration the question of the liability, under the circumstances of the present case, of an attorney at law for the omission to discover the presence upon the public records of a judgment which was a lien upon a lot of ground the title to which he had been employed to examine. The judgment was not upon the record at the time when the title was in fact examined by the attorney, but it was entered by confession in the interval between his examination and the execution of a mortgage upon the lot to his client. The testimony tended to prove the following facts: The appellee is a building association located in Baltimore City and, as is usual in such cases, its principal business is lending money upon mortgage. It does' not confine its loans to the place of its location but extends its transactions to other localities. *30 A short time prior to October 4th, 1897, one Mary A. Loar applied to it for a loan of $700 on mortgage of a lot of land lying at Midland in Allegany County. The appellee then, through D. Ross Metzger, its agent at Frostburg, requested the appellant, who resides at Frostburg, to examine the title to the lot. On October 4th the appellant went to Cumberland and made an examination of the title and made to Metzger a written report, which stated that the title was good and the property free from incumbrances, except a mortgage to the Fidelity Building Association. This report correctly set forth the state of the title at that time. Metzger forwarded the report upon the title to the home office of the appellee at Baltimore, where it was. discovered that the appellant had omitted to sign and date his report, which was thereupon returned to Metzger to have the appellant fully execute it and also furnish an abstract of the title. The appellant, on being applied to by Metzger, objected to making an abstract, saying that he was not paid for that, that he was only to receive $5, and that was for searching the title. Metzger then said, “ you have your notes made when you examined the title, write it up from them; ” and thereupon the appellant, on October 8th, in the presence and with the knowledge and assent of Metzger, forthwith made up the abstract at Frostburg from his notes of title which had been made at Cumberland on the 4th of October, and dated both the abstract and report as of the 8th of October and handed them to Metzger who transmitted them to the appellee. The preparation of the mortgage from. Mrs. Loar to the appellee was not entrusted to the appellant, but it was prepared at the home office of the appellee in Baltimore and forwarded to Metzger at Frostburg with directions to him to turn it over to the attorney and instruct him to see that the prior mortgage to the Fidelity Building Association was released before the new mortgage was recorded. The letter containing these directions closed with a request to Metzger to “ Look after the insurance, see that the taxes are paid *31 up to date and any other liens, if any, are cleaned off the record.” At the request of Metzger the appellant on October 21st went with him and Mrs. Loar to the bank at Frostburg, where the prior mortgage was paid off and released. The new mortgage was then executed by Mrs. Loar and her husband and was taken in charge by Metzger who transmitted it to Cumberland for record. There is no evidence that Metzger, before accepting the Loar mortgage and placing it on record, requested the appellant to bring his investigation of the title down to that time or to make any further search for taxes or incumbrances. On the contrary, the evidence indicates that he did not do so, although he must have been aware of the fact that no examination of the title had been made subsequent to October 4th, and must have relied upon the investigation made on that date. Some time afterwards it was discovered that on October 6th, after the search of the title had been made, but before the execution of the mortgage, and even before the abstract of title had been made up at Frostburg and it and the report on the title had been signed and dated, Mrs. Loar, the mortgagor, had confessed a judgment in favor of a third party for $1,300. The lien of this judgment, of course, took precedence over that of the appellee’s mortgage, and it so reduced the value of the mortgage that when it was foreclosed the proceeds of sale proved insufficient to pay the mortgage debt in full. The-appellee then instituted the present case against the appellant for alleged negligence in failing to report the judgment. The testimony of Hutchins, the appellee’s agent at its home office in Baltimore, tended to prove that in the spring of 1897 he had visited Frostburg and employed the appellant to act as attorney, generally, for the Frostburg branch of the appellee’s business, his compensation to be paid by the borrower as each loan was made, and that the appellant had accepted the employment, and that he had undertaken *32 as such general attorney to examine and report upon the title in question. The appellant denied any employment as the attorney, generally, at Frostburg of the appellee and also offered the testimony of Metzger upon cross-examination tending to show that he was not such general attorney and had been employed by it in only one other case, when he was employed through Metzger; that in the present case he had been employed by Metzger as the appellee’s agent simply to search the title, which he did and reported correctly thereon at the time ; that he was not given general charge or supervision of the Loar mortgage loan transaction, but that it was put by the appellee in the charge of its Frost-burg agent, Metzger, through whom all of its communications to him were made, and that the appellant did correctly all that Metzger requested of him in reference to it. The plaintiff offered but one prayer and it was granted by the Court. This prayer, although a very long one, presented in a correct manner the proposition that if the jury found that at and for sometime prior to the making of the loan to Mi-s. Loar the appellee had employed the appellant as its local attorney for Allegany County and he had accepted the employment, and that the appellee had referred Mrs. Loar’s application for a loan to him as its attorney to examine and report upon the title and attend to the matter of the mortgage loan, he was liable for the loss sustained by reason of his failure to discover and report the judgment for $1,300, even though they should find that Metzger, when he asked for an abstract of title on October 8th, assented that it might be made up from the appellant’s notes of the search already made. The appellant, as defendant, offered two prayers, both of which were rejected by the Court. The first of these prayers asserted the proposition that if the jury found that the appellee’s agent, Metzger, employed the appellant for the single purpose of examining Mrs, Loar’s title to the lot to be mortgaged, and he thereupon, *33 on October 4th, 1897, examined the title and made a correct report upon it as it then stood and furnished the appellee’s said agent with a certificate thereof, the plaintiff was not entitled to recover unless the jury found that the appellant was also employed to further examine the title before the mortgage was executed, even though they should find that the appellant made the abstract of the title and signed and dated the certificate on October 8th, 1897, with the knowledge and consent of the appellee’s said agent that the same were based upon the notes of title made on October 4th without any further examination. The appellant’s second prayer asserted the proposition that if the jury found that the appellee might have compelled the judgment creditor to make his money out of other property of the mortgagor and failed to do so it could not recover. An attorney at law is liable to his client for the possession of a reasonable degree of skill in his profession as well' as for the exercise of a like degree of diligence in the conduct of the transaction about which he is employed. If he fail in either respect he will be responsible to his client for the loss which the latter may sustain therefrom.*” This responsibility of the attorney, although ordinarily enforced by an action of case for negligence in the discharge of his professional duties, in reality rests upon his employment by the client and is contractual in its nature. Before the attorney can be .made liable, it must appear that the loss for which he is sought to be held arose from his failure or neglect to discharge some duty which was fairly within the purview of his employment. In the present case, if the appellant had accepted the position of counsel generally to the appellee for its business at Frostburg or in Allegany County, and the matter of Mrs. Loar’s mortgage loan was placed in his charge as such counsel to examine the title and give legal supervision to the consummation of the transaction, it was incumbent upon him to bring his search of the title down to the date of the *34 execution of the mortgage, and he was liable to the appellee for such loss as was the result of his failure to discover and report to it the $1,300 judgment. If, on the other hand, the appellant was not the counsel generally for Allegany County of the appellee, and the Loar mortgage transaction was not placed under his legal supervision, but he was simply employed by Metzger, the agent of the appellee, to examine the title to Mrs. Loar’s lot, and he did examine it on October 4th, 1897, and made a correct report of his examination, and was not asked or employed to bring the examination down to the date when the mortgage was subsequently executed, it would be manifestly unjust to hold him liable for a loss arising from the confession of a judgment after the date of his search of the title. Nor would the fact that on October 8th he made at Frostburg, at a distance from the public records of Allegany County, an abstract of the title, and signed the certificate which Metzger returned to him for that purpose, and dated both papers on the 8th, alter his situation, if Metzger knew that no further or additional search of the title had been asked of or made by him, but that the abstract was made up from the notes of his search made on October 4th and assented, and even requested, that it should be so made. The evidence as to the nature and extent of the appellant’s employment, which was the crucial fact in the case, was quite conflicting. While the testimony of Hutchins tended to show such an employment as would have made the appellant liable for the loss in question, the testimony of both the appellant and Metzger tended to prove the contrary. The fact that the appellee did not communicate directly with the appellant in reference to Mrs. Loar’s loan, but used its agent, Metzger, as the channel of its communication with him, and requested Metzger and not the appellant to look after taxes and other liens before recording the mortgage, tends to negative the assumption, which is a material part of the appellee’s prayer, that the appellant had undertaken to attend generally as its counsel to consummating the mortgage transaction. *35 The small fee charged by the appellant for his services and the attitude which he assumed when asked to prepare an abstract of the title, before anything was known of the judgment, tend to prove that he at least did not regard himself as charged with the duty of a further examination of the title. The fact that the agent Metzger did not resent or object to this attitude of the appellant but acquiesced in it tends to strengthen the contention of the appellant, that he had not general charge of the transaction but was only expected to make such investigation as Metzger asked of him. The case thus presented opposite and conflicting theories as to the nature and extent of the appellant’s employment in support of which the evidence was also opposite and conflicting. Under such circumstances each party was, if he requested it, entitled to have the legal proposition upon which his theory of the case was founded put before the jury in an instruction from the Court setting forth the proposition and declaring what facts it was necessary for the jury to find from the evidence in the case in order to sustain it. Eureka Fertilizing Co. v. Balto. Copper Co. 78 Md. 188. The appellee’s theory of the case as expressed by its counsel was given to the jury by the granting of his prayer. We think, without meaning to intimate any opinion as to the weight or the preponderance of the evidence, that the appellant was entitled to have had his theory of the case also put before the jury by granting his first prayer, which the Court rejected. The appellant’s second prayer was properly rejected. If he was liable for the loss arising from the deficiency of the mortgage security, by reason of his negligence in discovering and reporting to his client the existence of the judgment which rendered deficient the security that -would have otherwise been ample to pay the mortgage debt, he could not require the appellee to exhaust all of its remedies against the mortgagor before enforcing the liability of the appellant. This is not the case of a creditor having a lien *36 upon two funds, with a subsequent creditor having a lien upon only one of the same two funds, which would entitle the latter to require the former to first resort to that fund which is not common to both. No right to a marshalling of assets arises out of the present controversy. (Decided March 22nd, 1900.) As the liability, if any there be, of the appellant relates to the sufficiency of the mortgage which is a security for the debt, his. situation is in so far that of a surety that he would have been entitled, upon the payment by him of the debt, to an assignment from the appellee of the debt and mortgage, and thus afforded an opportunity to exhaust the other property of the debtor, but he had no right to require the appellee to first exhaust such other property. Because of the error in refusing to grant the appellant’s first prayer the judgment will be reversed and the cause remanded for a new trial. Judgment reversed and cause remanded.