The defendant Vincent was the county clerk of Oswego county on July 23, 1923, when a judgment in favor of Lula
There are two causes of action set up in the complaint: First, a cause of action against Vincent, county clerk, founded in negligence and alleging “ the plaintiff relying on the records maintained in said county clerk’s office, and without notice of the said judgment, purchased,” etc.; and second, “ For a separate and distinct cause of action,” a cause of action in contract against defendant Oswego Abstract Company, alleging the engagement of. defendant to prepare an abstract of title of the premises, the furnishing by it of an abstract wMch did not set forth the judgment, plaintiff’s reliance upon it, and damages in the same amount as in the first cause of action. The answer of each defendant, after certain formal admissions, is devoted exclusively to denials.
At the trial on proof of the facts, as above stated, the plaintiff rested. A motion for nonsuit was thereupon made by each defendant and denied by the court. Defendants then rested, and on motion of plaintiff’s attorney a verdict was directed against both
A judgment must be docketed as well as entered in the judgment book and the clerk must keep a judgment docket book as well as judgment book. (Sheridan v. Linden,
Appellant abstract company insists that it has no responsibility to plaintiff because the search having been ordered by the agent of plaintiff’s grantor, there was no privity of contract between it and plaintiff. With this I am not in accord. It is plain that, when this search was ordered by the real estate broker, it was within the contemplation of Henry L. Cole and the abstract company that it was to be for the benefit of whosoever purchased the farm, that it would be used by Cole as inducement to the sale of the farm, and that the purchaser would depend upon it. It cannot be conceived that any other purpose was thought of by the parties. It was the seller’s duty to furnish it for the buyer, and he did so. It was of no service or security to the seller. His title and ownership with its liens and frailties remained the same with or without it. It was material and assuring to the purchaser. When it was made current by the company, it knew as matter of fact as well as of law the purposes for which it was obtained and to which it would be applied, and by undertaking the service it assumed responsibility and its liability became fixed. In such case in ordering the search the real estate broker not only acted as agent for the owner of the property but he acted as agent for the buyer, and contract as well as privity of contract was complete. (Hooper v. California,
That a beneficiary who furnishes the consideration may enforce the contract there would seem to be no doubt. This right can be sustained either on the ground that the promisee acted as agent for the beneficiary, or on the theory that the consideration draws the promise to it. (Gorrell v. Greensboro Water Supply Co.,
I find support for the principle underlying this holding in Bank of Batavia v. N. Y., L. E. & W. R. R. Co. (
“ Constantly the bounds of duty are enlarged by knowledge of a prospective use. * * * We must view the act in its setting, which will include the implications and the promptings of usage and fair dealing. The casual response, made in mere friendliness or courtesy (Fish v. Kelly, 17 C. B. [N. S.] 194, 205, 207 * * *) may not stand on the same plane, when we come to consider who is to assume the risk of negligence or error, as the deliberate certificate, indisputably an ‘ act in the law ’ (Pollock, Contracts [8th ed.], p. 3), intended to sway conduct.” (Cardozo, J., in Glanzer v. Shepard,
This is not to say that the maker of an abstract of title is responsible to every person into whose hands it may subsequently find its way. The responsibility ceases with the person who contracts for the abstract or his privy, that is to say, liability stops with the person who purchases the abstract or the identical one for whose use and dependence he procures it. This distinction makes the decision in Glawatz v. People’s Guaranty Search Co.
“ In the present case the plaintiff certainly was not a party to the contract; neither was she privy thereto; and there is nothing in the record to indicate that Peacock was under any obligation to furnish her with an abstract of title to the premises of which she ultimately became the owner; and with these elements absent it is difficult to see how she can bring her case within the rule which she invokes, as that rule has been interpreted by the authorities to which reference has just been made.” (Glawatz v. People’s Guaranty Search Co., supra.)
The action against the abstract company was in contract, the damages were specific and exact in amount, there were no questions of fact for the jury, and I am of the opinion that the trial court was right in directing a verdict against that defendant and in favor of the plaintiff.
We feel, however, that the trial court was in error in directing a verdict against the county clerk. As has been said, that action was in negligence and upon the facts, as above stated, we think there was a question presented for the consideration of the jury. While doubtless the county clerk was guilty of negligence as matter of law in entering the Christian name of the judgment debtor as he did, there still remains a question of fact as to whether or not such negligence was a proximate or concurring cause of the injury sustained by plaintiff.
It is claimed that the county clerk is not responsible to plaintiff because, according to the pleadings and proofs, she at no time relied upon the county clerk’s records but solely depended upon the abstract of title. These considerations do not affect the question. The form of action chosen by plaintiff in asserting her claim against the abstract company did not release the county clerk. His liability remained the same as it would have had she sued both defendants in negligence, in which case the various questions of negligence and of proximate cause would necessarily have been for the jury.
It is further said that the action of the abstract company was such an intervening efficient cause of the injury as to exclude a finding of fact that the negligence of the county clerk in making the record was a proximate cause of the injury. With this we do not agree. Assuredly these are questions of fact. If the act of a party sought to be charged is in clear sequence with the result, and it could have been reasonably anticipated that the consequences complained of would follow the alleged wrongful act, it is a proximate cause. But if the consequences were only made possible by
We cannot say upon this record as matter of law, either that the faulty docketing of the judgment did not contribute to the injury sustained by plaintiff, or that such injury could not reasonably have been anticipated. (Donnelly v. Piercy Contracting Co.,
However, for reasons stated in the opinion of Sears, P. J., filed herewith, the majority of the court are of the opinion, in so far as the appeal of the defendant abstract company is concerned, that questions of fact are involved which must necessarily be submitted to the jury. The judgment and order should, therefore, be reversed and a new trial ordered, with costs to appellants to abide the event.
As to the defendant Vincent I agree with what is said by Justice Thompson in his opinion. As to the Oswego Abstract Company, however, I have reached the conclusion that no cause of action on contract as alleged in the complaint is maintainable. The contract was between the abstract company and Henry L. Cole. The real estate agent who ordered the abstract was the agent of Henry L. Cole and, so far as appears, of no one else. Nor was the plaintiff a beneficiary of the contract between the abstract company and Henry L. Cole so as to be entitled to maintain an action upon it. She is not within any of the classes to which the familiar rule in Lawrence v. Fox (
If the complaint may be deemed amended by what occurred at the close of the trial so as to embody an allegation of negligence, still questions of fact remained which only the jury could resolve. The certification of the abstract was but the “ culmination ” and the “ summary ” of the searcher’s work. (Glanzer v. Shepard,
The judgment and order should be reversed and a new trial granted, with costs to the appellants to abide the event.
Present — Sears, P. J., Crouch, Taylor, Edgcomb and Thompson, JJ.
Judgment and order reversed on the law and a new trial granted, with costs to the appellants to abide the event. As to the defendant Vincent, opinion by Thompson, J., in which all concur. As to the defendant Oswego Abstract Company, opinion by Sears, P. J., in which all concur except Thompson, J., who dissents in an opinion and votes for affirmance.