Currey v. Butcher

• Decision Date: 02 July 1900
• Citation: 37 Or. 380,61 P. 631
• Parties: CURREY v. BUTCHER et al.
• Court: Oregon Supreme Court

61 P. 631

37 Or. 380

CURREY v. BUTCHER et al.

Supreme Court of Oregon

July 2, 1900

Appeal from circuit court, Baker county; Robert Eakin, Judge.

Action by Lulu P. Currey against W.F. Butcher and another. From a judgment for plaintiff, defendants appeal. Reversed.

The defendants are attorneys at law, and this action is brought against them to recover damages for an alleged negligent performance of professional duties. The complaint alleges, in substance, that, at all the times therein mentioned, the defendants were partners, engaged in the practice of law in the courts of Oregon, under the firm name and style of Butcher & Eastham; that in the month of June, 1898, they were employed by the plaintiff to manage and conduct negotiations relative to the purchase of certain real estate in Baker county, and to examine the public records of such county to ascertain whether such property was subject to liens by judgment, mortgage, or otherwise; that they agreed and undertook to make such examination, and afterwards stated and represented to the plaintiff that they had done so, and that there were no liens by judgment or otherwise on the land except certain judgments and decrees known to both plaintiff and defendants; that plaintiff, believing such representations and relying thereon, and being advised and counseled by defendants that she might safely do so, entered into a written contract with the owners of the land, by the terms of which she purchased their right and title thereto for the sum of $1,575; that in truth and in fact there was then existing on the records of such county a judgment in favor of one Griswold, and against P.R. Bishop, a former owner of the land, and one Stuller, upon which there was then a balance of $575.87 due, which judgment was a lien upon the property referred to; that defendants failed and neglected to examine the public records of the county, or to discover such lien, or to advise plaintiff of the existence thereof, but on the contrary, being informed of its existence about the time plaintiff consummated the contract for the purchase of the land, they wickedly kept and concealed such knowledge from her, and fraudulently purchased the judgment for themselves, causing it to be assigned and transferred to one A.A. Kerr, who held the same in trust for them; that thereafter defendants procured other attorneys to act for and on their behalf, and to demand of plaintiff the payment of the amount due on such judgment, and, in the name of Kerr their said trustee, had the land levied upon and advertised for sale; that during all such times the plaintiff was ignorant of the true ownership of the judgment, and was consulting and advising with defendants in relation thereto and they were pretending to counsel with and advise her as her attorneys and counselors, and were charging her for said pretended services; that at and during said time, and before the plaintiff discovered the truth respecting the ownership of such judgment, she was compelled to and did employ legal assistance in the city of Portland, at an expense of $150, and was put to other expense in sending an agent to Portland, and in telegraphing and telephoning, amounting, in the aggregate, to $102.80; that, after plaintiff discovered the fraud the defendants had practiced upon her, she immediately endeavored to buy the judgment and stop the sale on execution, and did finally arrange with a relative of hers to buy the same for her, and on the 25th of February, 1899, consummated the purchase by paying to the defendants' agent the sum of $350, the lowest sum defendants would accept for such judgment. A motion to strike out all that portion of the complaint in reference to the purchase of the Griswold judgment by the defendants, and the expenditure of money by the plaintiff on account thereof, was overruled, and defendants answered separately. The defendant Butcher, by his answer, denies all the material allegations of the complaint, except the partnership between himself and co-defendant, and the rendition, docketing, and existence of the judgment in favor of Griswold and against Bishop and Stuller, and for a further and separate defense alleges that all or any services ever at any time performed by the firm of Butcher & Eastham, or either of them, in connection with the purchase, or contract for the purchase, of said lands, were done and performed for one H.E. Currey alone, and consisted of separate acts and services done under separate directions given by him, and for him only, and that there never was a general contract between them, covering negotiations for the purchase, or contract for the purchase, of any lands whatever; that Currey never at any time requested of defendants, or either of them, to make a full or complete examination of the records of Baker county regarding the lands, or the title thereof; that defendant suggested to him, before any purchase was made, or any contract entered into concerning such lands, that he should procure an abstract for the purpose of ascertaining the true condition of the title, but he refused to have the same made, or to pay therefor. The defendant Eastham, by his answer, denies all the material allegations of the complaint, except the partnership between himself and the defendant Butcher, and the existence of the judgment of Griswold against Bishop, and, for a further and separate defense, sets up substantially the same facts pleaded by the defendant Butcher. A reply was filed, putting in issue the new matter contained in the answers. Upon the issues thus joined, a trial was had, resulting in a verdict and judgment in favor of the plaintiff for the sum of $520, and the defendants appeal, assigning as error divers and sundry rulings of the trial court made during the progress of the trial, and its refusal to give certain instructions requested by them.

W.F. Butcher and T.H. Crawford, for appellants.

Dell Stuart, for respondent.

BEAN J. (after stating the facts).

After the jury had been impaneled, but before any evidence was offered, the defendants moved the court for an order requiring the plaintiff to elect whether she would rely for a recovery upon a breach of the contract of employment, or upon that feature of the complaint which charges that, in the course of the employment, the defendants purchased an outstanding title or lien on the property, to her damage. The overruling of the motion constitutes the first assignment of error. It was based upon the contention that the complaint states two causes of action,--one for a breach of contract and the other in tort for certain alleged fraudulent acts of the defendants in the course of their employment. But, as we understand the pleading, the gist of the action is the negligence of the defendants in the performance of a duty which they owed to the plaintiff by reason of their employment. She avers that they undertook and agreed to examine for her the title to certain land, which she contemplated purchasing, and that the work was so negligently and carelessly done that they failed to discover and report to her a judgment lien thereon, by reason of which she was damaged. Where one adopts the legal profession, and assumes to exercise its duties in behalf of another for hire, the law imposes a duty to exercise reasonable care and skill, and, if an injury results to his client from want thereof, he is liable to respond in damages to the extent of the injury sustained. This duty and liability arises from the relation of the parties under the contract, rather than from the contract itself, and at common law the injured party could sue, either in assumpsit, for a breach of the implied promise, or in case, for the neglect of duty. 3 Enc.Pl. & Prac. 107. In the latter instance it is necessary to aver the contract of employment, showing the relation of attorney and client, as a matter of inducement, because without such contract there could be no duty to the plaintiff, and hence no liability. As stated by Mr. Justice McDonald in Emigh v. Railroad Co., 4 Biss. 114, Fed.Cas. No. 4,449: "When there is a contract, either express or implied, from which a common-law duty results, an action on the case lies for a breach of that duty, in which case the contract is laid as mere inducement, and the tort arising from the breach of duty as the gravamen of the action. Thus, if a lawyer or physician is engaged by special contract to render professional services, and if, in the performance of such services, he is guilty of gross ignorance or negligence, an action on the case will lie against him, notwithstanding such...