Citizens Loan Fund And Savings Association of Bloomington v. Friedley

• Decision Date: 05 April 1890
• Docket Number: 14,185
• Parties: The Citizens Loan Fund and Savings Association of Bloomington v. Friedley et al
• Court: Indiana Supreme Court

23 N.E. 1075

123 Ind. 143

The Citizens Loan Fund and Savings Association of Bloomington v. Friedley et al

No. 14,185

Supreme Court of Indiana

April 5, 1890

From the Lawrence Circuit Court.

The judgment is affirmed, with costs.

J. H Louden and W. P. Rogers, for appellant.

J. W Buskirk, P. K. Buskirk and H. C. Duncan, for appellees.

OPINION

Mitchell, C. J.

This suit was instituted by the Citizens Loan Fund and Savings Association against Harmon H. Friedley and the sureties on his bond, to recover money alleged to have been lost to the loan association on account of the negligence and want of skill of the defendant Friedley while acting as the attorney of the association.

It is averred that the association made a loan of $ 400 to one of its shareholders in August, 1883, upon the faith of advice given by the appellee, its attorney, who certified to its officers in writing that the title to certain real estate upon which the applicant for the loan proposed to execute a mortgage as security therefor, was perfect and available to secure the loan applied for.

It appears that the real estate was owned by the applicant and his wife as tenants by the entireties, that the loan was made in reliance upon the advice of the attorney, that the borrower subsequently died, his estate being insolvent, and that his widow successfully resisted a suit for the foreclosure of the mortgage subsequently brought by the association, her defence having been predicated upon the ground that she signed the note and mortgage merely as the surety for her husband.

It is insisted that the complaint shows that the association sustained loss in consequence of the ignorance, carelessness or unskillfulness of its attorney, and that the latter, with his sureties, must therefore respond to it in damages for the amount lost. No neglect or want of skill appears except that the attorney was mistaken as to the law applicable to the state of the title of the borrower, and its availability as a security for the loan.

Attorneys are very properly held to the same rule of liability for want of professional skill and diligence in practice, and for erroneous or negligent advice to those who employ them, as are physicians, surgeons, and other persons who hold themselves out to the world as possessing skill and qualification in their respective trades or professions. Waugh v. Shunk, 20 Pa. 130.

The practice of law is not merely an art, it is a science which demands from all who engage in it without detriment to the public, special qualifications which can only be attained by careful preliminary study and training, and by constant and unremitting investigation and research. But as the law is not an exact science, there is no attainable degree of skill or excellence at which all differences of opinion or doubts in respect to questions of law are removed from the minds of lawyers and judges. Absolute certainty is not always possible. "That part of the profession," said Lord Mansfield, in Pitt v. Yalden, 4 Burr. 2060, "which is carried on by attorneys is liberal and reputable, as well as useful to the public, when they conduct themselves with honor and integrity; and they ought to be protected where they act to the best of their knowledge and skill. But every man is liable to error; and I should be very sorry that it should be taken for granted that an attorney is answerable for every error or mistake, and to be punished for it by being charged with the debt which he was employed to recover for his client." Watson v Muirhead, 57 Pa. 161; United States Mortgage Co. v. Henderson, 111 Ind. 24, 12 N.E. 88 (34).

An attorney who undertakes the management of business committed to his charge, thereby impliedly represents that he possesses the skill, and that he will exhibit the diligence ordinarily possessed and employed by well-informed members of his profession, in the conduct of business, such as he has undertaken. He will be liable if his client's interests suffer on account of his failure to understand...