Crawford Lumber Co. v. Abstract Guaranty Co.
| Decision Date | 06 March 1962 |
| Docket Number | No. 50557,50557 |
| Citation | 113 N.W.2d 703,253 Iowa 705 |
| Parties | CRAWFORD LUMBER COMPANY, a Corporation, Plaintiff-Appellant, v. ABSTRACT GUARANTY COMPANY, a Corporation, Defendant-Appellee. |
| Court | Iowa Supreme Court |
Ross, Johnson, Stuart, Tinley & Peters, Council Bluffs, for appellant.
Smith, Peterson, Beckman & Willson, Council Bluffs, for appellee.
The facts in the case before us are not in dispute. Plaintiff's action at law is based on its contention that it took title to real estate in Council Bluffs, paying certain considerations therefor in reliance upon an abstract of title certified by the defendant, which was in the business of furnishing such abstracts; and that the defendant omitted to show a judgment which was a lien upon the title, so that the plaintiff was later compelled to satisfy it. The case was tried to the court without a jury, and resulted in a judgment for the defendant.
It appears from the record that prior to May 9, 1957, the plaintiff, which is an Iowa corporation engaged in the building material business, furnished certain materials for the construction of a residence for Stewart A. Carlson and Evelyn I. Carlson, husband and wife. On the date named the Carlsons were indebted to the plaintiff in the sum of $3,771.78, and it filed its mechanic's lien claim for that amount.
Late in 1957 Edward C. Evans, president of plaintiff company, had some conversations with Stewart A. Carlson with reference to disposition and settlement of the Carlsons' indebtedness. At that time there was a mortgage on the property, held by the Equitable Life Assurance Society of the United States; there were delinquent and current real estate taxes, and delinquent federal tax liens against the real estate in addition to the plaintiff's mechanic's lien claim.
After some further negotiations between Evans and Carlson, it was agreed that all matters would be settled by the Carlsons conveying the property to the plaintiff, in return for which plaintiff would assume the Equitable mortgage; pay all delinquent tax claims and assume current taxes; and release its mechanic's lien. Carlson gave the plaintiff a statement showing these items and representing that they constituted all liens against the property. Plaintiff's employees checked the liens and found they agreed with Carlson's information.
About January 14, 1958, the Carlsons conveyed the property to plaintiff, subject to the liens stated; and the deed was recorded on that date. At that time plaintiff had paid none of the liens and had not satisfied the mortgage. Its only expense had been the sum of $23.10 for revenue stamps on the deed and the recording fee. On January 16, next, Donald P. Baird, an attorney practicing in Council Bluffs, called Mr. Evans and, as Evans testified, said to him: It also appears without dispute that Baird advised Evans of the approximate amount of the judgment, which was in the amount of $1,717.62, with interest and costs. This judgment had been entered on September 10, 1957, in the District Court of Pottawattamie County, in favor of Cohoe Lumber and Supply Company and against Stewart A. Carlson.
Mr. Evans at once notified his attorney, who advised that the abstract of title to the property should be secured from the mortgage holder and extended to date to show the actual situation as to title and liens. Accordingly the abstract was procured and delivered to the defendant for extension and certification. On February 12, 1958, the abstract was certified and returned. The certificate was in the usual form, certifying that the abstract as extended was correct and showed all matters of record affecting the title, including, among many other things, unsatisfied judgments. The Cohoe Company judgment was not shown, evidently through an omission of the abstracter.
Thereafter, the abstract having been examined by an attorney, the plaintiff proceeded to satisfy the Equitable mortgage, in the sum of $11,799.94; to pay and satisfy state and federal tax liens amounting to nearly $1,000.00; and to release and satisfy its mechanic's lien. Some months later execution was issued on the Cohoe judgment, and plaintiff was compelled to pay it, in the sum of $1,977.43. It is this amount, with costs including attorney fees, which plaintiff seeks to recover in the action before us.
I. It is well settled that the liability of an abstracter of titles is based on contract; and that one who undertakes to furnish such abstracts is liable for a failure to use ordinary care in so doing. His contract is that he will exercise such care. Young v. Lohr, 118 Iowa...
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