Chicago, R. I. & G. Ry. Co. v. Duncan

• Decision Date: 25 April 1925
• Docket Number: (No. 9372.)
• Citation: 273 S.W. 908
• Parties: CHICAGO, R. I. & G. RY. CO. v. DUNCAN.
• Court: Texas Court of Appeals

273 S.W. 908

CHICAGO, R. I. & G. RY. CO. v. DUNCAN.

(No. 9372.)

Court of Civil Appeals of Texas. Dallas.

April 25, 1925.

Rehearing Denied June 6, 1925.

Appeal from District Court, Dallas County; Kenneth Foree, Judge.

Action by the Chicago, Rock Island & Gulf Railway Company against Josephine Duncan, individually and as independent executrix of the will and estate of S. W. S. Duncan, deceased. Judgment of dismissal, and plaintiff appeals. Reversed and remanded.

Lassiter & Harrison, of Fort Worth, and Phillips, Townsend & Phillips, and Tom Scurry, all of Dallas, for appellant.

D. A. Eldridge, of Dallas, for appellee.

VAUGHAN, J.

Appellant caused this suit to be instituted against appellee individually and as independent executrix of the will and estate of S. W. S. Duncan, deceased, to recover damages alleged to have been sustained by appellant on account of appellee's testator selling and delivering to appellant, on the 26th day of August, 1902, an incomplete abstract of title to a certain tract of land, accompanied by false certificate. In brief, appellant alleges that in the month of August, 1902, it applied to appellee's testator, who was then engaged in making abstracts of title to lands located in Dallas county, Tex., for a full and complete abstract of title to a certain tract of land located in said county, and that said testator thereafter prepared, made, and certified an abstract of title to said tract of land, for which he charged and appellant paid him the sum of $14.40, and that, relying on the truth and correctness of the certificate and abstract, appellant purchased the land, and that thereafter, on or about the 9th day of February, 1916, appellant discovered, for the first time, that there had been omitted from said abstract, through the negligence of said testator in compiling same, a deed executed on the 9th day of February, 1883, by appellant's grantor and her deceased husband, conveying the title to said property to their children, Louise and Eugenia Cretien, except a life estate reserved by the grantor; that said abstract failed to show these facts; that the certificate of said abstract was false and untrue, and that it failed to disclose this outstanding deed, which was then of record in the deed records of Dallas county, and that appellant suffered damage in the sum of $3,500, being the price paid by it to Augustine Cretien for said property, as appellant had to and did pay to said prior grantees the sum of $8,500 in order to acquire the fee-simple title to said property, the same being vested by said prior conveyance in said Eugenia and Louise Cretien.

Appellant further alleged that S. W. S. Duncan died on or about October 26, 1916, leaving a will which was duly probated, by which he devised and bequeathed his entire estate, of the value of $75,000, to appellee, making her in the will independent executrix; that appellee was appointed and confirmed by the court as independent executrix, and duly qualified and took possession of the property, and, at the time of the institution of appellant's suit, was still in possession of all of the property of the estate of S. W. S. Duncan, deceased.

We do not deem it necessary to extend the statement further from the pleadings, as a discussion of the propositions will sufficiently develop the case.

Appellee, by her answer, excepted to appellant's petition on the following grounds: (1) To so much as sought a judgment against her individually; (2) that appellant's petition showed upon its face that its cause of action was barred by the 2-year statute of limitations; and (3) that said petition showed on its face that appellant's cause of action was barred by the 4-year statute of limitation; and, in addition, set up numerous other facts not necessary to a disposition of this appeal, therefore same will be omitted.

The cause was heard on the above exceptions April 23, 1924, same being sustained by the court; and, appellant refusing to amend, judgment was entered dismissing the suit. From this judgment appellant duly prosecuted its appeal, and, by appropriate propositions, questions the validity of the proceedings terminating in said judgment. Appellee contended in the court below, and now here contends, that an action for fraud cannot be properly maintained upon this state of facts, in that appellant's action is contractual and cannot be otherwise. On this contention the trial court sustained appellee's second and third special exceptions presenting the statute of limitations of 2 and 4 years. This contention extends to the very foundation of appellant's cause of action, for, if correct, the judgment entered by the court is proper; otherwise should be reversed, and the cause remanded.

Appellant's cause of action is based upon what it alleges to be a fraud perpetrated upon it by appellee's testator, growing out of the breach of the contract; and appellee contends that for the breach an action ex contractu was only available to appellant.

That such rule governs the majority of actions arising from the breach of a contract is undoubtedly true, but it is equally true that there are contracts for the breach of which an action ex contractu, or an action ex delicto, may be brought at the option of the injured party. This is recognized in Addison on Torts, p. 17, to wit:

"A tort may be dependent upon or independent of a contract. If a contract imposes a legal duty upon a person, the neglect of that duty is a tort founded on the contract, so that an action ex contractu for the breach of a contract or an action ex delicto for the breach of duty, may be brought, at the option of the plaintiff."

That appellee's testator entered into a contract, for the breach of which an action ex contractu would lie, is not controverted; it being contended by appellee that when the abstract was delivered August 26, 1902, in the defective condition as alleged by appellant, there immediately arose against testator a cause of action only for the damage then sustained from the failure to make and furnish a complete abstract as per contract, against which the statute of limitations was then put in motion, and, although the breach of the contract remained undiscovered, and the injury resulting therefrom as alleged was not in fact suffered until after the expiration of the period of time completing the bar of the statute of limitations, appellant was precluded by such bar of the statute from recovering the damage alleged to have been sustained.

The making of the contract involved was accompanied with a common-law duty to perform the work agreed to be done, to wit, the making of the abstract with skill, reasonable expedience, and faithfulness, and the negligent failure on the part of appellee's testator to include in the abstract made by him the omitted deed which caused appellant to sustain damage, as alleged, was a tort as well as a breach of the contract. The injury resulting from the careless and unskillful preparation of the abstract made available to appellant the action instituted, notwithstanding the breach of the contract which gave rise to the tort was also ground for an action ex contractu, appellant having the right to select from the remedies available the form of action through which it would seek redress. Flint & Walling Mfg. Co. v. Beckett, 167 Ind. 491, 79 N. E. 503, 12 L. R. A. (N. S.) 924; Hundley v. Louisville & N. R. Co., 105 Ky. 162, 48 S. W. 429, 63 L. R. A. 289, 88 Am. St. Rep. 298.

That appellant had a cause of action against appellee's testator for his breach of the contract in negligently preparing the abstract, whereby he violated his express agreement to carefully prepare and furnish a complete abstract, will not exclude all other remedies for the wrong done. It is true the law permits but one recovery for a wrong, but the means of effecting that recovery is not limited by the law to one channel, to wit, a suit for breach of contract. Appellee's testator undertook, under his agreement with appellant, to search the county records of Dallas county for all instruments of record affecting the title to the property which appellant contemplated buying when the abstract was ordered, and appellant suffered nominal damages on account of the negligent manner in which said Duncan performed the work. However, appellant's real injury or grievance rests, not so much in the act of negligence, as in the positive, express, and also implied statement and representations of said testator that he had not been negligent, but, on the contrary, had been diligent and careful, and was delivering to appellant a complete abstract of title, one that embraced all instruments of record pertaining to or affecting the title to the property in question. The statement in the certificate made by said testator being, in effect, a statement that there were no conveyances or incumbrances affecting the title to said property of record other than those embraced in said abstract. Thompson's Title to Real Property, § 20.

It was upon this false representation that appellant relied, acted, and sustained its damage. The obligation to make a true search and a correct examination, it is true, arose only because of the contract, but it thereupon became no less a legal duty, not only to represent the true facts in the abstract as prepared, but in the certificate thereto as well, and the falsity of the representations made by the abstract and certificate, although not intended to be false in any respect, was no less a legal fraud.

It is conceded by appellant, in which we cheerfully join, that appellee's testator, S. W. S. Duncan, acted in good faith in certifying to the false certificate, and believed, no doubt, that it was true; but this does not lessen the appellee's liability, in her representative capacity, for the fraud alleged against her testator. This, because good faith and belief in the truth of a representation, while relieving testator from the charge of having engaged in...