Butte Land & Investment Co. v. Williams

• Citation: 173 P. 550,55 Mont. 39
• Decision Date: 25 May 1918
• Docket Number: 3913.
• Parties: BUTTE LAND & INVESTMENT CO. v. WILLIAMS.
• Court: Montana Supreme Court

173 P. 550

55 Mont. 39

BUTTE LAND & INVESTMENT CO. v. WILLIAMS.

No. 3913.

Supreme Court of Montana

May 25, 1918

Appeal from District Court, Silver Bow County; J. J. Lynch, Judge.

Action by the Butte Land & Investment Company against Icie Williams. Directed verdict for defendant, judgment entered accordingly and plaintiff appeals. Affirmed.

Nolan & Donovan, of Butte, for appellant.

W. E Carroll, of Butte, for respondent.

SANNER J.

The respondent listed a town lot in Butte with the appellant to be sold for $1,400, the appellant to receive a commission of 5 per cent., and she agreed that she would "furnish an abstract of title to date of sale, *** and to convey said property by good and sufficient deed clear of incumbrances" to the appellant or its nominee. The respondent furnished an abstract which the appellant brought down to date; but, as completed, the abstract showed two apparent defects in the title, viz. a deed of the property on June 24, 1891, to John W. Fowler, followed by a deed of the same date from James W. Fowler, and a mortgage in 1907 to Augusta Y. Scott, followed by an assignment of said mortgage by Minnie Rowe and Freda Harkins "as devisees and legatees under the last will" of Augusta Young Scott and a satisfaction of such mortgage by the assignee named. Both of these were sins of the abstractor-the one of commission, the other of omission-easily correctible by reference to the original records; in fact, the appellant satisfied itself, with reference to the mortgage transaction, that the assignors were the devisees of the original mortgagee, entitled as such to make the assignment. Appellant found a buyer for the property, notified respondent accordingly, and demanded that she correct the abstract as to the mortgage transaction and make good the title as to the Fowler conveyances. This she refused to do, claiming that the contract she made absolved her from any and every expense save the commission. The purchase was not completed and the appellant, claiming this was due to the defendant's failure to furnish the abstract, sued for its commission. Upon the trial a verdict was directed for the respondent, and, judgment being entered accordingly, this appeal is the result.

As reasons for the order directing a verdict the trial judge assigned: (1) That in its demand to make good the title, the appellant had exacted from the respondent an impossible thing not required by the contract;...