Sickler v. Indian River Abstract & Guaranty Co.

• Decision Date: 02 April 1940
• Citation: 142 Fla. 528,195 So. 195
• Parties: SICKLER et al. v. INDIAN RIVER ABSTRACT & GUARANTY CO.
• Court: Florida Supreme Court

195 So. 195

142 Fla. 528

SICKLER et al. v. INDIAN RIVER ABSTRACT & GUARANTY CO.

Florida Supreme Court, Division B.

April 2, 1940

Error to Circuit Court, Brevard County; M. B. Smith, Judge.

Action by Florence P. Sickler and others, as executors under the last will and testament of A. H. Sickler, deceased, against the Indian River Abstract & Guaranty Company to recover damages for negligence in making or certifying an abstract of title. To review an adverse judgment, plaintiffs bring error.

Affirmed.

COUNSEL

John S. Byington, of Daytona Beach, for plaintiffs in error.

Crofton & Wilson, of Titusville, for defendant in error.

OPINION

CHAPMAN Justice.

This case is here for review on writ of error taken to a final judgment entered in behalf of the defendant below by the trial court upon sustaining a demurrer interposed by the defendant to three counts of plaintiffs' amended declaration. The final judgment was entered when plaintiffs declined to amend further their amended declaration. The suit was brought in the name of the Executors under the last Will and Testament of A. H. Sickler, deceased.

Count 1 of the amended declaration in substance alleges that the defendant was an abstracter and made abstracts to lands in Brevard County, Florida, and made an abstract to certain lands described in the amended declaration for the Melbourne Steam Laundry, and that this concern turned the abstract so made over to A. H. Sickler for the purpose of examination, and that Sickler, relying upon the abstract loaned a large sum of money thereon to Melbourne Steam Laundry and took its mortgage; that the abstract did not contain or set forth the fact of record of a pre-existing mortgage on the land in the principal sum of $10,000, which was of record in the public records of Brevard County Florida, and by reason of the neglect and omission to include this said mortgage in the abstract made by the defendant, the loan and investment made by Sickler was lost and rendered of no use or value; that the loss sustained is shown by the Bill of Particulars, which was the principal, interest and solicitor's fees of the omitted mortgage and totaling $14,329.

Count 2 of the amended declaration contains substantially the same allegations as Count 1. The theory of defendant's liability is for an injury that may result from a failure to exercise ordinary care and skill in discovering in the records and noting in the abstract all deeds and mortgages affecting the title, regardless of the privity of contract. In other words, the defendant abstract company, as charged in Counts 1 and 2, is liable for the negligent preparation and perfection of the abstract.

Count 3 of the amended declaration alleges that Sickler employed the defendant to make for him an abstract of title to certain lands in Brevard County, Florida, for a consideration, and that Sickler relied upon the abstract made and its correctness in making a certain loan to one Melbourne Steam Laundry, and securing the loan by mortgage lien on the identical land; that said abstract did not contain the fact of record of a mortgage from Melbourne Steam Laundry to the Melbourne State Bank, as recorded on the 16th day of January, 1926, in Mortgage Book 19, at page 235, of the Public Records of Brevard County, Florida, and that due to said omission and neglect of the defendant, the said Sickler was ill advised and deceived by the abstract made for him by the defendant, and that the investment made by him was lost and rendered useless, as shown by the Bill of Particulars.

The demurrer addressed to each count of the amended declaration contains some 48 grounds. It is unnecessary to recite all the many grounds of the demurrer, but we are setting out the grounds of the demurrer addressed to each of the three counts of the amended declaration necessary to a disposition of the case at bar, viz.: (a) the count fails to state a cause of action, (b) the count fails to properly show any privity of contract between the plaintiffs' testate and the defendant; (c) the count fails to show, except by inference, that the alleged omitted mortgage was recorded when the abstract was made; (d) the count fails to show any contract between Sickler and the defendant; (e) the count fails to allege privity between Sickler and the defendant; (f) the count shows on its face that the abstract was delivered to the Melbourne Steam Laundry; (g) the count fails to show that the defendant knew the Melbourne Steam Laundry would deliver the abstract to Sickler; (h) the count fails to allege the date, terms, conditions, parties or subject matter of the contract to make and deliver the abstract; (i) the count fails to allege that Sickler employed or entered into a contract for the preparation and delivery to him (Sickler) by the defendant of the said abstract.

Counts 1 and 2, alleging a negligent making of the abstract by the defendant, can be disposed of under one assignment.

The law requires that a declaration should state distinctly and clearly every fact that is essential to the plaintiff's right of action. The allegations of a declaration are required to be positive and direct or by fair inferences therefrom contain all ultimate facts upon which plaintiff relies for recovery. See Kirton v. Atlantic Coast Line R. Co., 57 Fla. 79, 87, 49 So. 1024; Kidd v. Jacksonville, 91 Fla. 380, 107 So. 677; Co-operative Sanitary Baking Co. v. Shields, 71 Fla. 110, 70 So. 934; Atlantic Coast Line R. Co. v. Holliday, 73 Fla. 269, 74 So. 479.

A demurrer admits as true the well pleaded allegations or averments of fact and presents only questions of law as to the legal sufficiency of the...