Kendall v. Rogers

• Decision Date: 07 April 1943
• Docket Number: 31.
• Citation: 31 A.2d 312,181 Md. 606
• Parties: KENDALL et ux. v. ROGERS.
• Court: Maryland Court of Appeals

31 A.2d 312

181 Md. 606

KENDALL et ux. v. ROGERS.

No. 31.

Court of Appeals of Maryland

April 7, 1943

Appeal from Circuit Court, Kent County; William R. Horney, J. Owen Knotts and James F. Evans, Judges.

Action by Walter R. Kendall and another against R. Hynson Rogers for damages sustained through defendant's alleged negligence as plaintiffs' attorney. From a judgment for defendant plaintiffs appeal.

Affirmed.

Charles P. Coady, Jr., of Baltimore (Coady & Farley, of Baltimore on the brief), for appellants.

James C. Burch and L. Wethered Barroll, both of Baltimore, for appellee.

Before SLOAN, C.J., and DELAPLAINE, MARBURY, GRASON, and MELVIN, JJ.

GRASON Judge.

This case presents to this Court for review the correctness of the lower court's ruling in sustaining a demurrer to the appellants' declaration, upon which judgment was entered for the appellee and an appeal therefrom to this Court entered by the appellants.

The facts set up in the declaration may be summarized as follows Kendall owned a farm in Kent County, which he acquired from Coleman and others in 1920. On December 4, 1926, Kendall and wife granted and conveyed this farm to MacCubbin and wife and in the deed conveying the same convenanted 'that he will warrant specially the property hereby granted and conveyed'. On June 4, 1930, MacCubbin and wife mortgaged the said farm to Kendall and wife for $4,330 with interest at six per cent per annum, payable in three years from the date of the mortgage. That sometime before June 1, 1939, MacCubbin and wife contracted to sell this farm to Cross, who declined to take title and complete the contract on the grounds that the title was defective, and this action by Cross was taken because of defect in the title before Kendall acquired the farm in 1920 and neither the said Kendall, nor his wife, nor anyone claiming by, through or under them, were in any way responsible either by act or deed, for the existence of those things which were alleged to have created such defect in the title to said farm.

That MacCubbin and wife retained the defendant, an attorney at law, to represent them to clear up the alleged defect in the title to said farm; that the defendant approached the plaintiffs and told them that the title to said tract of land was defective, and 'represented to them that it was their duty and legal responsibility to see that the title to said farm was made good in MacCubbin and wife'. That about June 1, 1939, the plaintiffs were advised by the defendant 'to attend his office for the purpose of releasing said mortgage and consummating the sale of said farm by MacCubbin and wife to Cross; that they did attend at the office of said attorney on said date for that purpose. That the defendant had been acting as attorney for MacCubbin and wife and was acting for them at said settlement, and the plaintiffs were not represented by counsel but believed and had a right to believe from all the circumstances as herein set out, that the said R. Hynson Rogers was acting also for them in the protection of their rights'; that the plaintiffs relied on the statements of the said R. Hynson Rogers 'that it was their legal obligation to pay for the curing of the alleged defect in said title and relying upon said statement that such was their legal obligation, they delivered a full release of said mortgage and received for the same $1053.93, although there was due them at that time, under the terms of said mortgage $4330.00, with interest from December 4, 1938'; 'that there was deducted from the amount due under said mortgage $3276.07 for the purpose of curing said alleged defect in title.' There is then set out a statement of the transaction which purports to be expenses incurred by R. Hynson Rogers, attorney (the defendant), in clearing title to Drum Point Farm, which contains the following: 'Attorneys fee covering work December 15, 1938 to June 1, 1939 on Drum Point title $200.00'. It is then alleged 'that said item of $200.00 as is stated on said statement, was deducted from the amount of said mortgage to plaintiffs, as a fee to said Rogers (defendant) for acting as attorney for plaintiffs in clearing title to said tract of land.' It is then charged: 'since the defendant had done the work to clear title to said land, as is shown by said signed statement, and there had been deducted from the plaintiffs' funds a fee of $200.00 for the defendant, as is also shown by said signed statement, the plaintiffs had a right to and did assume that the said R. Hynson Rogers was looking out for their rights, especially since they were not otherwise represented in said matter; and believing this, they relied upon the statements and representations of the defendant that they were legally obligated to make good for the said MacCubbin and wife the title to said lot of ground and were legally obligated to pay for the curing of said defects and, therefore, accepted said check of $1053.93 in full for the release of said mortgage and allowed said deduction to be made'.

It is then charged that the defect in the title to the said farm was not brought about through any acts of the plaintiffs or either of them, or by any person or persons claiming by through or under them and that they were under no legal liability to pay any money to cure said alleged defect or to pay out to MacCubbin and his wife any moneys which they might have been called upon or required to pay out for any such defect or to allow MacCubbin and his wife, or their attorney, to deduct from the amount due to them under said mortgage any moneys for the purpose of curing said alleged defect, because their covenant as to warranty was 'special' and only in that they did 'warrant specially the property hereby granted and conveyed'. It is then charged that although plaintiffs do not wish to cast the slightest reflection upon the good intention of the said R. Hynson Rogers, but on the contrary believe he acted in the utmost good faith, they, nevertheless, allege that the advice given by the said R. Hynson Rogers to the plaintiffs, as their attorney, was incorrect, improper, unskillful and negligent; for that the plaintiffs having had the right to rely on and having relied on said R. Hynson Rogers, as an attorney at law, and on the advice given to them as aforesaid when they delivered said absolute release of mortgage and permitted the deductions from the amount due...