Sullivan v. Stout

• Decision Date: 29 April 1938
• Docket Number: No. 42.,42.
• Citation: 120 N.J.L. 304,199 A. 1
• Parties: SULLIVAN v. STOUT.
• Court: New Jersey Supreme Court

199 A. 1

120 N.J.L. 304

SULLIVAN

v. STOUT.

No. 42.

Court of Errors and Appeals of New Jersey.

April 29, 1938.

Appeal from Supreme Court.

Action for damages arising from attorney's erroneous certification of title by James A. Sullivan against Edward P. Stout. Judgment for defendant, and plaintiff appeals.

Affirmed.

The opinion filed by the trial court follows:

"This cause has been submitted to the court for trial without a jury upon stipulated facts and upon depositions taken by consent of the parties.

"The complaint is in two counts. In the first the plaintiff alleges that in March, 1910, he employed the defendant, an attorney at law, to 'examine and certify the title to certain real estate' and that the defendant was negligent in the performance of the duty thus assumed in that he certified that title to said premises in fee simple was vested in William P. Kastenhuber and Dora, his wife, who in fact had only a life estate therein, by reason of which negligence plaintiff was damaged. In the second count the plaintiff alleges, in substance, that the defendant 'certified, represented and warranted that he examined the title to said lands and that title in fee simple was vested' in said Kastenhubers, which was not the fact as hereinbefore stated, whereby plaintiff was damaged.

"The defendant's answer, aside from denying liability generally, sets up three seperate defenses to both counts of the complaint. In the first separate defense the defendant denies that he was employed to examine and certify the title to said premises, but asserts that he was employed merely as an abstractor to examine the records in the Hudson county register's and clerk's offices and make report of the title as it appeared from the records of said offices which he did in a proper manner. The second defense denies that plaintiff sustained any damage and the third sets up the statute of limitations.

"It appears from the stipulated facts that on or about March 15, 1910, defendant was employed by plaintiff to search the title to the premises in question. The nature and extent of the employment, however, is in dispute. It further appears that pursuant to his employment the defendant searched the records in the Hudson county register's, clerk's, and surrogate's offices, and on or about April 13, 1910, delivered to plaintiff an abstract of the wills, deeds, and mortgages in the chain of title, as they appeared of record in those offices, which indicated that the fee simple to the aforesaid premises was vested in William P. Kastenhuber and his wife. On April 13, 1910, said Kastenhubers conveyed said premises to James Billington, who in turn conveyed same to plaintiff's wife, Ella J. Sullivan, by deed dated June 29, 1910.

"It further appears from the stipulated facts that on February 28, 1911, a protracted course of litigation was begun in the Court of Chancery of this state involving the legal sufficiency of a tax sale deed in the chain of title of the premises in question, in which litigation the present plaintiff and his wife were parties. This litigation took various forms and resulted in several appeals to the Court of Errors and Appeals, until finally on May 18, 1931, Brisbane v. Sullivan, 108 N.J.Eq. 305, 154 A. 746, said court decided that said tax sale deed was void and that the Sullivans never had more than an estate for the life of said Dora E. Kastenhuber in said premises and a final decree to that effect was entered on July 16, 1931.

"The gravamen of the cause of action set forth in the first count of the complaint is the hiring of a professional man to perform a service, within the line of his profession which he negligently performed to the damage of the person employing him. Our Court of Errors and Appeals in the case of Gogolin v. Williams, 91 N.J.L. 266, 102 A. 667, 668, held that: "'In such a situation, quite uniformly, the rule has been declared to be that the statute of limitations begins to run from the time of the occurrence of the breach of duty, and not from the time of the discovery of actual damage, as a result of such breach.' See, also, Wilcox v. Plummer, 4 Pet, U.S., 172, 7 L.Ed. 821; Troup v. Smith's Ex'rs, 20 Johns., N. Y., 33; Somerset County Board of Chosen Freeholders v. Veghte, 44 N.J.L. 509; 25 Cyc. 1083-1116; 37 C.J. 830.

"In 17 R.C.L. 977, § 132, the text-writer sums up the principle involved as follows: An action by a client for the misfeasance or nonfeasance of his attorney is based on the latter's breach of duty, and not on the consequential damages subsequently resulting. In such cases the general rule is that in the absence of fraudulent concealment by the attorney, the statute begins to run at the time of the neglect or misconduct and not from the time when the wrong is discovered or the consequential damages are felt.'

"In the case of Lattin v. Gillette, 95 Cal. 317, 30 P. 545, 546, 29 Am.St.Rep. 115, at page 118, which is in many respects similar to the case sub judice, the court said: 'The running of the statute was not suspended by the fact that the plaintiff did not ascertain the error in the certificate [certificate of title], or by the fact that the existence of the error was not determined by the superior court until more than two years had expired. The judgment of the court did not constitute the negligence of the defendants, but was only evidence that they had been guilty of negligence, and the eviction of the plaintiff under such judgment was not the cause of action against the defendants, but was merely an element in determining the amount of damages that he had sustained by reason of their negligence. "Where an...