Western Loan & Savings Co. v. Silver Bow Abstract Co.

• Citation: 78 P. 774,31 Mont. 448
• Parties: WESTERN LOAN & SAVINGS CO. v. SILVER BOW ABSTRACT CO.
• Decision Date: 16 December 1904
• Court: Montana Supreme Court

78 P. 774

31 Mont. 448

WESTERN LOAN & SAVINGS CO. v. SILVER BOW ABSTRACT CO.

Supreme Court of Montana

December 16, 1904

Commissioners' Opinion. Appeal from District Court, Silver Bow County; E. W Harney, Judge.

Action by the Western Loan & Savings Company against the Silver Bow Abstract Company. From a judgment in favor of defendant plaintiff appeals. Reversed.

Jno. A Shelton, for appellant.

W. I. Lippincott, for respondent.

POORMAN C.

In this case the district court sustained a motion for nonsuit, and judgment was entered for defendant. The appeal is from this judgment.

1. The action was commenced to recover damages alleged to have been sustained by plaintiff by reason of a defective abstract of title to certain real estate which one George A. McDonald mortgaged to plaintiff to secure a loan, the defect being a failure to note in the abstract an unsatisfied judgment then of record against McDonald. "On motion for nonsuit, *** that which the evidence tends to show must be taken as proved." Cummings v. H. & L. S. & R. Co., 26 Mont. 434, 68 P. 852; McCabe v. Montana Cent. Ry. Co. (Mont.) 76 P. 701, and cases cited. In this case the evidence tends directly to show that the plaintiff is a building and loan association incorporated under the laws of Utah, and that McDonald was at the time a stockholder therein, and resided at Butte, Mont.; that Paul A. Ozanne was president and general manager of defendant company from 1898 to 1900, and, as such official, signed its annual reports and that he was also the agent of plaintiff company for the purpose of appraising the value of real estate offered as security for loans; that, under an arrangement previously made between plaintiff and defendant, applicants for loans were required to furnish abstracts prepared by defendant, the applicant paying defendant therefor; these abstracts were to be furnished plaintiff, and not the applicant, and the statements therein were relied upon by plaintiff; that the abstract in question was furnished under this arrangement. On May 10, 1899, the written application of McDonald for a loan, offering certain lands for security, was signed and sworn to before Paul A. Ozanne as a notary public, and on the same day the value of this security was appraised by Ozanne and one other, and on May 20th Ozanne sent the application for a loan, together with the appraisement, to the plaintiff, at Salt Lake, Utah. The abstract was made by defendant, and closed with this statement: "We further certify that there are no unsatisfied judgments, liens, attachments or unpaid taxes appearing of record and affecting the property above described, except such as are noted herein. Witness our hand and the corporate seal of said company hereto attached this 13th day of May, A. D. 1899, at 2 o'clock p. m. Silver Bow Abstract Co. by Paul A. Ozanne, Manager." This abstract did not contain any reference to a judgment against McDonald. The plaintiff relied exclusively on the abstract being correct, and suffered damage by reason of this omission. The abstract was sent to the plaintiff by Ozanne on May 20th, and the loan was approved May 27th or 28th. The mortgage from McDonald to the plaintiff was acknowledged before Ozanne on June 9th, and about June 13th the check for the loan was sent to Ozanne, and was made payable to McDonald. The plaintiff's license to do business in Montana expired May 31st, and it was not renewed until July 25th, the explanation given being that the State Auditor did not furnish the company a form of statement; that, relying upon this being furnished, the company did not make a report until it received this form from the...