Young v. Lohr

• Citation: 92 N.W. 684,118 Iowa 624
• Parties: ROBERT T. YOUNG v. A. W. LOHR, Appellant
• Decision Date: 20 December 1902
• Court: United States State Supreme Court of Iowa

92 N.W. 684

118 Iowa 624

ROBERT T. YOUNG v. A. W. LOHR, Appellant

Supreme Court of Iowa, Des Moines

December 20, 1902

Appeal from Sioux District Court.--HON. WM. HUTCHINSON, Judge.

ACTION for damages sustained from a defective abstract of title furnished by the defendant. Judgment for the plaintiff, and the defendant appeals.

Affirmed.

Hatley & Irwin for appellant.

Stone & Tinley and Orr & TePaske for appellee.

OPINION

SHERWIN, J.

The plaintiff was a resident of Council Bluffs, where a certain judgment was rendered against him, which was transcripted to Sioux county, and became a lien upon land which he owned there, and to satisfy which the land was sold at sheriff's sale, and afterwards went to deed. The plaintiff did not know of the transcript, lien, or sale until after the sheriff's deed was delivered. After the sale of the land, he made application to the firm of Walters & Wadsworth, of Council Bluffs, for a loan thereon, and made them his agents for procuring the same, and for paying off a mortgage then resting thereon, and all other liens and incumbrances affecting the property, and agreed to furnish a complete abstract of the title to the land. He delivered to Walters & Wadsworth an abstract of the title which was not brought down to that date, and they sent it to the defendant for extension and certification, accompanied by the following letter: "We inclose for record mortgage of Robert T. Young and wife to our firm, also the abstract of title for extension. Will you please show the consideration for each transfer on the abstract? We do not know the amount of fee for recording this form of mortgage, or we would remit. In returning the papers, advise us fee for recording and abstract, and we will forward draft." It was extended and certified by the defendant, without showing the filing of the transcript of the Pottawattamie county judgment, or the sheriff's sale of the land.

It is elementary that one who undertakes, for a consideration, the examination of titles is liable for a failure to exercise ordinary care in so doing. It is the general rule that the liability of an abstracter of titles is based upon contract. Russell & Co. v. Polk County Abstract Co., 87 Iowa 233, 54 N.W. 212. And it is contended that there was no contract or privity of contract between the plaintiff and the defendant, upon which liability can be predicated in this case, because the abstract was extended and certified for the use of Walters & Wadsworth, and not for the plaintiff. The defendant relies upon the case of Bank v. Ward, 100 U.S. 195 (25 L.Ed. 621) (which is a leading case), in support of his proposition that only those to whom the abstract is furnished can recover. The facts in that case are not parallel to those before us. There the owner of the land procured the abstract, and furnished it to the loaner, as he had agreed to do; and, upon suit brought by the latter, the defendant was held not liable, because there was never any employment of the defendant by the plaintiff, and because the abstract was furnished without any knowledge on the part of the defendant as to the purpose for which it was obtained. It was not shown in that case that the owner who applied for the abstract, was acting as the agent of the plaintiffs. The court said: "The only suggestion in that direction being that it may be held that the applicant for the loan, when he employed the defendant, may be regarded as the agent of the plaintiffs. Such suggestion, being entirely...