Currey v. Butcher

Mr. Justice Bean, after stating the facts, delivered the opinion of the court. 1. After the jury had been impaneled, but before any evidence was offered, the defendants moved the court for an order requiring the plaintiff to elect whether she would rely for a recovery upon a breach of the contract of employment, or upon that feature of the complaint which charges that, in, the course of the employment, the defendants purchased an outstanding title or lien on the property, to her damage. The overruling of the motion constitutes the first assignment of error. It was based upon the contention that the complaint states two causes of action, — one for a breach of contract, and the other in tort for certain alleged fraudulent acts of the defendants in the course of their employment, but, as we understand the pleading, the gist of the action is the negligence of the defendants in the performance of a duty which they owed to the plaintiff by reason of their employment. She avers that they undertook and agreed to examine for her the title to certain land which she contemplated purchasing, and that the work was so negligently and carelessly done that they failed to discover and report to her a judgment lien thereon, by reason of which she was damaged. Where one adopts the legal profession, and assumes to exercise its duties in behalf — 385 — of another for hire, the law imposes a duty to exercise reasonable care and skill, and if an injury results to his client from want thereof he is liable to respond in damages to the extent of the injury sustained. This duty and liability arises from the relation of the parties under the contract, rather than from the contract itself, and at common law the injured party could sue, either in assumpsit, for a breach of the implied promise, or in case, for the neglect of duty: 3 Enc. Pl. & Prac. 107. In the latter instance it is necessary to aver the contract of employment, showing the relation of attorney and client, as a matter of inducement, because without such Contract there could be no duty to the plaintiff, and hence no liability. As stated by Mr. Justice McDonald, in Emigh v. Pittsburg, etc. R. R. Co. 4 Biss. 114 (Fed. Cas. No. 4,449) : “When there is a contract, either express or implied, from which a common law duty results, an action on the case lies for a breach of that duty, in which case the contract is laid as mere inducement, and the tort arising from the breach of duty as the gravamen of the action. Thus, if a lawyer or physician is engaged by special contract to render professional services, and if, in the performance of such services, he is guilty of gross ignorance or negligence, an action on the case will lie against him, notwithstanding such special contract.” And Mr. Bliss, after quoting from Chitty that “the inducement or averment by way of introductory allegation is peculiarly proper where a party is charged upon, or in respect of, the breach of a contract or implied duty resulting from any particular character or capacity of defendant,” says: “This doctrine is applied to declarations against attorneys, physicians and mechanics for negligence, and against carriers and innkeepers for loss of goods ; the contract or possession of the property and — 386 — the injury being the gist or substance, while the allegations showing the occupation of the defendant, in reference to which the contract was made or the duty arose, show matter of inducement:” Bliss, Code Pl. (3 ed.) § 150. It is clear, therefore, that the averment of the contract of employment does not change the action from one of negligence on account of the failure of the defendants to perform the duty arising out of the relation of attorney and client to an action on contract. And the allegations in reference to the subsequent purchase by the defendants of the Griswold judgment, and the other matters in relation thereto, were properly pleaded as matter in aggravation of damages. The complaint, therefore, states but one cause of action, and there was no error in overruling the motion. 2. It is next urged that the court erred in overruling defendant’s objection to the introduction of any evidence because the complaint does not state facts sufficient to constitute a cause of action. This objection having been raised upon the trial, the plaintiff is entitled to the benefit of all intendments in favor of the pleading which she could invoke after verdict: Specht v. Allen, 12 Or. 117 (6 Pac; 494); Baker City v. Murphy, 30 Or. 405 (42 Pac. 133, 35 L. R. A. 88). The particular objection made to the complaint seems to be that it is defective because (1) it does not describe the land which defendants were employed to assist the plaintiff in purchasing, or to which the lien of the Gpiswold judgment attached; (2) it appears therefrom that no execution could lawfully issue on the Griswold judgment without a revivor thereof; (3) it contains no allegation that Bishop and Stuller were insolvent.; and (4) no averment that the Griswold judgment antedated the decree in the forclosure suit of Balfour, Guthrie & Co. against Bishop. All these points — 387 — are technical, and amount only, in effect, to an objection that the cause of action is imperfectly stated; and such objections are cured by verdict. 3. The next assignment of error is the action of the court in admitting the record of a power of attorney from the plaintiff to her husband, H. E. Currey; but this, if error, was immaterial, for there is uncontradicted parol evidence tending to show that her husband had authority to act for her in the purchase of the land in question, and to employ the defendants to examine the title and assist in such purchase. If the defendants were employed by H. E. Currey to act as the attorneys for and represent the plaintiff in the purchase of the land and the examination of the title, and assumed to and did act in that capacity, they certainly cannot defend an action brought by her against them for negligence on the ground that H. E. Currey had not sufficient authority to employ them. 4. It is further insisted that the contract for the purchase and sale.of the land, made by Balfour, Guthrie & Co. and the plaintiff, was improperly admitted in evidence, because its execution was not proven by the subscribing witnesses. A sufficient answer to this position is that no such objection was made to the introduction of the instrument when offered in evidence ; hence it is unavailing now. 5. The claim is also made that the court erred in admitting .a certified copy of the judgment lien docket, showing the Griswold judgment; but no issue was made in the pleadings upon that question, and therefore the admission of this testimony was immaterial, and could have affected no substantial interest of the defendants. 6. It is next contended that the court erred in over- . ruling defendants’ motion for a nonsuit, and in not instructing the jury to find a verdict in favor of the — 388 — defendants. This motion was based upon the contention that there was no proof that defendants were actually employed by the plaintiff to examine the title to the land referred to, or that the relation of attorney and client existed between them. It is sufficient to say that an examination of the record discloses that there was some evidence tending to support the plaintiff’s claim upon this point. Its sufficiency was for the jury, and not the court. It is not necessary to quote or particularly refer to the testimony. Indeed, in view of the conclusion we have reached upon another point, which will necessitate a new trial, comment thereon would be improper. 7. Error is also assigned because the court refused to give the following instruction requested by the defendants : “If you find from the evidence in this case that the defendants, as attorneys, were employed by H. E. Currey to assist him in negotiating a purchase of the land named in the complaint, and to look up and pass upon the title thereto, and that at the time the defendants were so employed, and performed the work of looking up the title to said land, they had no knowledge or information that said H. E. Currey was acting as the agent of the plaintiff Lulu P. Currey, then I instruct you that the relation of attorney and client did not exist as between the plaintiff and these defendants, or either of them, in connection with such employment, and your verdict should be for the defendants.” We think this instruction ought to have been given. The principal questions of fact seem to be (1) whether the defendants were, in fact, the attor-. neys of the plaintiff or of H. E. Currey ; and (2) whether they were employed to examine and report upon the title to the land in question, or to do certain specific acts not embracing such examination. It was important, therefore, that the question of defendants’ employment be clearly and distinctly submitted to the jury, so that they — 389 — might intelligently pass upon this feature of the case. “It is a general doctrine, sustained by an overwhelming weight of authority,” says Mr. Justice Van Fleet, “that an attorney is liable for negligence in the conduct of his professional duties, arising only from ignorance or want of care to his client alone ; that is] to the one between whom and the attorney the contract of employment and service existed, and not to third parties Buckley v. Gray, 110 Cal. 339 (52 Am. St. Rep. 88, 42 Pac. 900, 31 L. R. A. 862). And Mr. Jaggard, in his recent work on Torts, says : “In actions against members of the bar for negligence it is well settled that only the person with whom the attorney contracts can maintain the action, for it is to him alone that the attorney owes a particular duty:” 2 Jaggard, Torts, 904. This rule, with its limitations, is adverted to and exhaustively discussed by the Supreme Court of the United States in the case of Bank v. Ward, 100 U. S. 195, which was an action for damages against an attorney by a party who loaned money upon a defective certificate of title to a certain piece of real estate, furnished by the attorney to another. It was held that the plaintiff could not maintain the action, because there was no privity of conduct between him and the attorney; the court saying: “Beyond all doubt, the general rule is that the obligation of the attorney is to his client, and not to a third party, and unless there is something in the circumstances of this case to take it out of that general rule, it seems clear that the position of the defendant must be sustained.” And so it has been held that an attorney employed to draw a will is not liable to a person who, through the attorney’s ignorance or negligence in the discharge of his professional duties, was deprived of the portion of the estate which the testator instructed the attorney should be given such person by the will: Buckley v. Gray, 110 — 390 — Cal. 339 (52 Am. St. Rep. 88, 42 Pac. 900, 31 L. R. A. 862). And again, an attorney employed by a mortgagee to examine the security, and who gives his client a certificate of title, is not liable to an assignee of the mortgagee for loss by reason of error in the certificate : Dundee Mtg. Co. v. Hughes (C. C.), 20 Fed. 39, and note to same, 24 Am. Law. Reg. 197, 202; 2 Shearman & Redfield, Neg. (5 ed.) § 562 ; Mechem, Agency, § 836. Unless, therefore, the relation of attorney and client existed between- the plaintiff and the defendants, she cannot maintain an action against them for negligence in examining the title for another; nor is this rule any the less applicable in this case because H. E. Currey may have, in fact, been the agent of the plaintiff and acting for her in the employment of the defendants, unless that fact was known to them. The relation of attorney and client is a personal relation, and can only be entered into by the consent of both parties. Mr. Weeks says : “It is said that two things are necessary to establish the relation between attorney and client:' (1) The agreement' of the attorney to be an attorney for the party; and (2) the agreement of the party to have the other for an attorney Weeks, Attys. at Law (2 ed.), § 185. If the defendants knew, as plaintiff contends, that EL E. Currey was, in fact, the agent of and acting for the plaintiff, and so employed them, they would, of course, be liable to her the same as if the employment' was by her in person; otherwise, not. It may be urged that the court substantially instructed the jury in accordance with the rule of law above indicated, in its general charge, but we cannot concur in that view. It is true, the court charged the jury in two or three instances that, to enable the plaintiff to recover, she must establish by a preponderance of the evidence that she employed the defendants to look up the title to the — 391 — land, as to liens thereon, etc.; but, in view of the two important questions of fact, these instructions could well be understood by the jury to apply particularly to the character of the defendants’ employment, rather than to the person by whom they were employed. In any event, the defendants were entitled to have the question clearly and distinctly submitted to the jury, and it was error for the court to refuse the instruction requested upon this point. The defendants also requested the court to charge the jury that: “The gist of this action is the breach of an alleged contract by the defendants, as the attorneys of plaintiff, in failing to discover certain defects in the title to real estate claimed to have been purchased by the plaintiff, which defect consisted of an outstanding judgment lien, which judgment lien the plaintiff was after-wards compelled to buy at a cost of $350; and, before plaintiff can recover in this case, she must establish, by a preponderance of the evidence, this contract of employment and the breach thereof; and, failing to do that, the fact that the defendant Eastham afterwards, in November, purchased this judgment, and compelled the plaintiff to pay him therefor the sum of $350, would not make, and cannot make, the defendants liable in this action. ' The only matter you can consider the purchase of this judgment by the defendant Eastham for is in ascertaining and determining the amount of damages the plaintiff is entitled to recover, provided she satisfies you by a preponderance of the evidence that the defendants, prior to such purchase, in June, 1898, negligently and carelessly failed to discharge their duty as attorneys under her employment of them in negotiating the sale and looking up the title to this land, if such employment ever existed.” This instruction was evidently intended to advise the jury that the plaintiff was not entitled to — 392 — recover in this action solely on account of the purchase by the, defendant Eastham of the Griswold judgment, some months after the contract for the purchase of the land was entered into by the plaintiff; and it was proper that the jury should have been so instructed' upon this feature of the case. As before suggested, the gist of the action is the negligence of the defendants in failing to discover and report the Griswold lien ; and, unless such negligence is shown, the purchase by the defendants, or either of them, of the outstanding judgment lien, would not, in itself, expose them to liability to the plaintiff in this action. The proposed instruction quoted is open to some objection, and was perhaps properly refused on account of its language, because, among other things, it states that the action is for the breach of an alleged contract, when, as we have seen, it is an action of negligence pure and simple ; yet the point referred to should have been covered by the instructions of the court. For the refusal to give the instruction requested, in reference to the employment of the defendants by H. E. Currey, the judgment of the court below must be reversed, and the cause remanded for a new trial; and it is so ordered. Reversed.