Shine v. Nash Abstract & Investment Co.

• Decision Date: 10 May 1928
• Docket Number: 6 Div. 982
• Citation: 217 Ala. 498,117 So. 47
• Court: Alabama Supreme Court
• Parties: SHINE v. NASH ABSTRACT & INVESTMENT CO.

117 So. 47

217 Ala. 498

SHINE v. NASH ABSTRACT & INVESTMENT CO.

6 Div. 982

Supreme Court of Alabama

May 10, 1928

Appeal from Circuit Court, Blount County; O.A. Steele, Judge.

Action by W.E. Shine against the Nash Abstract & Investment Company. From a judgment for defendant, plaintiff appeals. Affirmed.

William Vaughan and Ray J. Emmerson, both of Birmingham, and J.T Johnson, of Oneonta, for appellant.

Nash &amp Fendley, of Oneonta, for appellee.

BROWN J.

The weight of authority sustains the rule that one engaged in the business or calling of making abstracts of title to real estate for hire, under employment of a vendor, is not liable because of negligence in the preparation of the abstract, to the vendee, in the absence of notice or knowledge that the abstract is to be furnished to, and used by, the vendee in consummating the sale of the property. National Savings Bank v. Ward, 100 U.S. 195, 25 L.Ed. 621; 1 C.J. 369, § 12; 1 R.C.L. 94, § 7.

And some courts hold that the application of the rule is not affected by knowledge on the part of the abstracter that the abstract is for the use by the vendee. Zweigardt v. Birdseye, 57 Mo.App. 462.

But we are of opinion that sound reasoning and the weight of modern authority sustain the rule of liability for negligence resulting in injury to the vendee, where the vendor is under duty, or assumes the obligation, to furnish such abstract for the use of the vendee, and the person making the abstract on the vendor's order has knowledge or notice that the abstract is for such use, this on the ground that in such circumstances the engagement of the abstracter by the vendor is a contract made for the benefit of the vendee, and under such engagement the abstracter owes the vendee, who is to use and rely on the abstract, the duty of using reasonable care and skill in examining the records affecting the title and making the abstract. 1 R.C.L. 94, § 7; Economy B. & L. Ass'n v. West New Jersey Title Guarantee Co., 64 N.J.Law, 27, 44 A. 854; Denton v. Nashville Title Co., 112 Tenn. 320, 79 S.W. 799; Anderson v. Spriestersbach, 69 Wash. 393, 125 P. 166, 42 L.R.A. (N.S.) 176; Murphy v. Fidelity Abstract & Title Co., 114 Wash. 77, 194 P. 591; Brown v. Sims, 22 Ind.App. 317, 53 N.E. 779, 72 Am.St.Rep. 308; Western Loan & Sav. Co. v. Silver Bow Abstract Co., 31 Mont. 448, 78 P. 774, 107 Am.St.Rep. 435; Lawall v. Groman, 180 Pa. 532, 37 A. 98, 57 Am.St.Rep. 662, 2 Am.Neg.Rep. 69.

In the case of Glanzer v. Shepard, 233 N.Y. 236, 135 N.E. 275, 23 A.L.R. 1425, the Court of Appeals of New York, in a very able opinion treating a kindred question involving the liability of a person engaged in the business of weighing commodities--in that case beans,--on the engagement of the seller for the use of the purchaser, observed:

"We think the law imposes a duty toward buyer as well as seller in the situation here disclosed. The plaintiffs' use of the certificates was not an indirect or collateral consequence of the action of the weighers. It was a consequence which, to the weighers' knowledge, was the end and aim of the transaction. Bech, Van Siclen & Co. ordered, but Glanzer Bros. were to use. The defendants held themselves out to the public as skilled and careful in their calling. They knew that the beans had been sold, and that on the faith of their certificate payment would be made. They sent a copy to the plaintiffs for the very purpose of inducing action. All this they admit. In such circumstances assumption of the task of

weighing was the assumption of a duty to weigh carefully for the benefit of all whose conduct was to be governed. We do not need to state the duty in terms of contract or of privity. Growing out of a contract, it has none the less an origin not exclusively contractual. Given the contract and the relation, the duty is imposed by law. *** There is nothing new here in principle. If there is novelty, it is in the instance only. One who follows a common calling may come under a duty to another whom he serves, though a third may give the order or make the payment. *** 'It is the duty of every artificer to exercise his art rightly and truly as he ought.' *** The surgeon who unskillfully sets the wounded arm of a child is liable for his negligence, though the father pays the bill. *** The bailee who is careless in the keeping of the goods which he receives as those of A does not escape liability though the deposit may have been made by B. It is ancient learning that one who assumes to act, even though gratuitously, may thereby become subject to the duty of acting carefully, if he acts at all. *** The most common examples of such a duty are cases where action is directed toward the person of another or his property. *** A like principle applies, however, where action is directed

...