150 A. 509 | Conn. | 1930
The defendant is engaged in the business of searching and certifying land titles in and about Bridgeport. The plaintiff alleged in its complaint that it engaged the defendant to examine the record title to a certain tract of land and to report to *539 it thereon and that the defendant "undertook to carefully examine said records and to render a report thereon to the plaintiff and to give the plaintiff its opinion as to the condition of said title"; that in the certificate of title given to it by the defendant a judgment lien was set forth as the first incumbrance upon the land; that, in reliance upon this certificate, the plaintiff purchased the judgment lien, through a third party, but that, when foreclosure proceedings were brought, it was discovered that the lien was invalid, all to the damage of the plaintiff. A copy of the certificate was annexed to the complaint. It stated that Dora B. Stavola was the owner of record of the land, that the defendant was "of the opinion that said Dora B. Stavola has a good indefeasible estate . . . therein as appears by said Records, and that the same is free from all incumbrances whatsoever as appears by said records, except as hereinafter set forth"; then follows a description of an attachment of the land and a judgment lien, Carmela Stavola to The Schwarz Brothers Company, dated February 18th, 1925, and July 16th, 1925, respectively, a savings-bank mortgage covering this and other lands executed by Antonio Dalessio, dated February 8th, 1926, and a lis pendens of a foreclosure action based upon the mortgage, and certain unpaid taxes. The allegations of the complaint so far referred to are all admitted by the answer. At the trial, as the court has found, it was proven that the lien was invalid because the attachment was made and the lien filed after the property had been conveyed away by Carmela Stavola. The trial court gave judgment for the defendant, holding that it rendered the plaintiff a truthful statement as to the recorded instruments affecting the title to the land and that it had never agreed to submit an opinion as to the legal effect of any such instrument nor had it warranted or *540 guaranteed the title of Dora B. Stavola to the land or the title of any one to the lien or any other interest in the property.
The admitted undertaking of the defendant was more than merely to report to the plaintiff the facts of record affecting the title to the property, and the terms of the certificate actually go beyond such an undertaking. It undertook to and did give its opinion to the plaintiff as to the condition of the title of Dora B. Stavola to the property; it assumed to give and did give, not a bare abstract of the facts of record, but a certificate as to the title. Had it undertaken the former obligation and simply reported to the plaintiff the dates of the various instruments affecting the title from the time when Carmela Stavola acquired it, the defect in the judgment lien would have been apparent. Instead, it gave its opinion that Dora B. Stavola had a good indefeasible title to the premises, free from all incumbrances except those stated, the first of which was the judgment lien. This certificate, delivered as it was by the defendant, must be given such meaning as the plaintiff would reasonably and naturally give to it. So read, it undoubtedly carried the meaning that the lien was an existent incumbrance of record against the property. As a matter of record this could only be so if the conveyance of the property by Carmela Stavola was made after it attached. The date of that conveyance, as appears from a stipulation of the parties made at the trial, and the facts which we add to the finding on the plaintiff's motion, was a matter of record which was or ought to have been known to the defendant. The defendant therefore unintentionally, no doubt, misrepresented the title to the property in a respect with which it was chargeable with knowledge. Whatever limits there may be to its obligation under its agreement with the plaintiff, certainly *541
an incorrect statement of such a nature was a breach of that undertaking. Jacobsen v. Peterson,
The duty of the defendant under its undertaking was to use such care and skill as other persons engaged in a like occupation under similar circumstances would use. Savings Bank v. Ward,
The right of the plaintiff rests upon a conveyance to it by deed of such interest as the Schwarz Brothers Company had in the land by reason of the judgment lien and was not an assignment of the debt of Carmela Stavola to the company. It is therefore of no consequence *543 that the plaintiff offered no testimony to show that the claim of the company against her was not collectible from assets she might own.
For the purpose of disposing of this case we have not found it necessary to consider the plaintiff's motion to correct the finding, except in the one respect we have noted. An examination of the record leads us, however, to make two comments for the guidance of trial courts in making findings for appeal. As we recently pointed out, a trial court is rarely justified in failing to find facts which have been proven and which a party asks to have incorporated in the finding merely because it deems them immaterial. State v. Pisano,
The record discloses no claim of damages by the plaintiff other than the amount paid by it to purchase the judgment lien, which the trial court has found to be $1400. No good purpose would therefore be served by a retrial.
There is error, the judgment is set aside and the case remanded with direction to the Superior Court to enter a judgment for the plaintiff to recover $1400, with interest from June 27th, 1928.
In this opinion the other judges concurred.