Talpey v. Wright

Riddick, J., (after stating the facts). It is contended that the facts set up in the complaint are sufficient to constitute a cause of action in favor of appellants. The contention is that “the abstract was prepared by the appellees, Wright and Robinson, as the basis of a loan to be negotiated through Hoover’s agency; that Hoover placed it with the Topeka Investment & Doan Company ; that afterwards the appellees noted in the abstract the conveyance to Gleed, as trustee for this company, and its assignees; that the appellees then knew that it was placed in a given channel, and was in form designed to pass to the assignees; and that the abstract was made as much for the assignee of the Loan Company as for the Loan Company itself.” This is the argument of appellant. It is not alleged or contended that the abstracters knew that the note and security would be sold, or that, if sold, the purchaser would rely upon the abstract of title prepared by them for Hoover and the Loan Company; but it is said that, as the notes were negotiable, and the conveyances made to secure the Loan Company and its assignees, the abstracters were liable for an injury to any purchaser of these notes who relied upon such abstract. To support this contention the case of Dickle v. Abstract Co., 89 Tenn. 431, is cited. In that case Dickie, before purchasing land from Bowman, required that an abstract of the title be furnished. Bowman applied to the Abstract Company, who, at his instance, prepared the abstract for the use of Dickie. The abstract showed title in Bowman, and Dickie relied upon it, and agreed to purchase. Thereupon a deed from Bowman to Dickie was prepared by the Abstract Company. Dickie after-wards brought suit against the Abstract Company, alleging that he was injured through its negligence in failing to note a defect in the title. The case went off on demurrer, and the facts alleged are very meagerly set out in the report, but there is no intimation, in the opinion or elsewhere, that there was any want of knowledge on the part of the Abstract Company in regard either to the purpose or the person for whose information and benefit the abstract was intended. So far as we can ascertain, the action was based on a contract made by the Abstract Company with Bowman to prepare an abstract for the use, benefit and information of Dickie. That being the case, it was held that Dickie had a right of action for injury to him occasioned by the negligence of the Abstract Company in preparing such abstract. This case has been criticised by counsel for appellees as being in conflict with the leading case of Savings Bank v. Ward, 100 U. S. 195. In that case Mr. Justice Clifford, who delivered the opinion of the court, said': “It is conceded that the certificates were made by the defendant at the request of the applicant for the loan, without any knowledge on the part of the defendant what use was to be made of the same, or to whom they . were to be presented. None of those matters are controverted ; but the plaintiffs contend that an attorney in such a case is liable to the immediate sufferer for neg- . ligence in the examination of such a'title, although he, the sufferer, did not employ the defendant, and the case ■shows that the service was performed for a third person without any knowledge that the certificate was to be used to procure a loan from the injured party.’’ In other words, in that case the defendant did not know that the abstract was intended for the use and benefit of the plaintiff, nor the purpose for which it was . to be used ; he did not contract to make an abstract for the information of plaintiff, and it was held that the plaintiff had no right of action. On the contrary, in Dickle v. Abstract Co., the defendant not only made/ the abstract, but prepared the deed from the grantor to the purchaser, and we infer from thq opinion that he knew the person for whose use and benefit it was wanted, and the purpose of it, and the court held that the plaintiff had a right of action. Apart from the rather broad expressions of the judge who delivered the opinion in Dickle v. Abstract Co., .there does not ’ seem to be any irreconcilable conflict in the points .actually decided in the two cases. But, whether conflicting or not, we do not see that - either of those cases support the contention of the appellant in this case. There is no allegation in this -complaint from which we can infer that the appellees .. contracted with Rhea to prepare an abstract for the use, and benefit of the appellant, Talpey. They furnished ■an abstract to Rhea, for the use and information of Hoover and the Topeka Investment & Loan Company. Upon the abstract so furnished, a loan was made to Rhea by such company. If we concede that Hoover, or the Topeka Investment & Loan Company would, under the circumstances, have a right of action against the makers of the abstract for an injury to them occasioned by defects therein, still it would not follow that appellant had a right of action. After the loan had been made, and the abstract had served the purpose for which it was prepared, the appellant purchased the notes executed by Rhea, which were secured by a trust deed on land. The appellant alleges that, before making such purchase, he required of the company that it furnish him an abstract of title, and that the company furnished him the abstract prepared by the appellees, upon which he relied. This action of the Topeka Investment & Loan Company might make it liable for defects in the abstract furnished by them to appellant, but, in the absence of any allegation that they were acting as the agent of appellees in furnishing such abstract, it would not affect the liability of said appellees. The appellees, did not contract to furnish the abstracts to appellant, nor to anyone for his use and benefit. We think it clear that he has no right of action against them. The judgment of the circuit court is therefore affirmed.