Decatur Land, Loan & Abstract Co. v. Rutland
185 S.W. 1064
Tex. App.
1916
Check Treatment
WILLSON, C. J.

(after stating the facts as above). It appeared from the testimony that at the time it made and' delivered the abstract to Mortimer and Weathersby appellant did not know it was not for their use alone, but, instead, was for Rutland’s use in determining the condition of the title to the land Mortimer and Weathersby had agreed to sell to him. Appellant insists it therefore appeared it owed no duty to Rut-land to discover and note in the abstract the existence of the trust deed, and hence that the finding of liability on its part to Rutland on the ground of negligence was unauthorized.

[1] If the finding of negligence on the part of appellant made the basis of the judgment against it had to be referred to the transaction between it and Mortimer and Weathers-by, its contention, perhaps, should be sustained, for by the rule applicable to such a state of facts recognized by the weight of authority, appellant incurred no liability to Rutland because of its negligence in the discharge of the duty it owed in that transaction, not to him, but to Mortimer and Weath-ersby alone. 1 Oyc. 215; 1 C. J. 369; 4 Elliott on Contracts, § 3554; 3 Page on Contracts, § 1313; 1 R. C. 94.

[2] But the finding of the court is not to be 'referred to that transaction alone. He also found, and the finding is not attacked as without the support of testimony, that appellant was guilty of negligence in “reaffirming and recertifying” the abstract to Rut-land, after it was informed that he contemplated the purchase- of the land and would rely “on the title as shown in the abstract as being true and correct.” It cannot be doubted, we think, that if appellant in its business as an abstracter of titles undertook at Rut-land’s instance, under the circumstances found by the court, to examine, and correct, and complete, if incorrect or incomplete, the abstract it had made for Mortimer and Weathersby, it owed him the duty to make diligent search for all matters of record relating to or affecting the title to the land, and became liable to him, for damages he suffered because of its failure to do so. Appellant’s duty to Rutland under such circumstances would not be different from the duty it would have owed him had it undertaken to make and furnish him a full and complete abstract of title to the land. Appellant, however, insists it did not undertake, in the contractual sense of the word, to examine and correct and complete the abstract. If it “reaffirmed and recertified” the abstract as found by the court, it insists it did so gratuitously, that therefore' no contractual tie was created between it and Rutland, and hence that the only duty it owed him in connection with the transaction was “to be honest with him.” But we are of opinion it should not be said on the facts found by the court that appellant’s acts in reaffirming and recertifying the abstract at Rutland’s instance was without consideration. It appears from the findings that Rutland’s attorney when he requested appellant to re-read and re-examine the abstract for the purpose of determining whether it was true and correct or not, explained to appellant’s manager *1067 that Rutland had contracted to buy the land if the title on investigation was found to be good, and that he (Rutland) was relying altogether on the abstract for information as to the condition of the title. It further appears that said attorney then offered to pay appellant any reasonable sum for the service, if it complied with his request. And it further appears from the findings that appellant in compliance with such request examined and reread the abstract, and then “reaffirmed said abstract to the said attorney of plaintiff and assured him that said abstract was absolutely correct in every particular, and that plaintiff need have no fear in. relying on the title as therein shown.” It seems to us that the legal effect of facts found as stated was to show the existence of a valid contract between appellant and Rutland. The former performed service at his request. Even if the latter had not agreed to pay the former for the service, the law would imply an undertaking on his part to do so. If appellant might, when it performed the service, have demanded of Rutland that he pay it a reasonable sum therefor, the fact that, waiving its right, it did not do so would not relieve it of the obligation it incurred when it' undertook to pass upon the correctness and completeness of the abstract presented to it. For reasons indicated by what has been said, the first and second assignments are believed to be without merit. Therefore they are overruled.

[3] The contentions presented by the third and fourth assignments are: (1) That the finding of negligence on the part of appellant in failing to note the trust deed in the abstract was unauthorized because of the absence of testimony showing that said trust deed had been “recorded or indexed in such manner as to make it discoverable by any reasonable search”; and (2) that if it was guilty of negligence in failing to discover and note the trust deed in the abstract, it appeared that the fraudulent conduct of Mortimer, Weathersby, and the Brownings, and not appellant’s negligence, was tne proximate cause of the loss Rutland sustained. It appears from the record that the trust deed omitted from the abstract was filed for record June 20, 1913, and “was recorded in volume 29, page 256, of the records of Mortgages and Trust Deeds of Wise county.” The abstract in question was made in December, 1913, about six months after the trust deed was filed for record. The law required the clerk when the trust deed was filed to record it “without delay,” and to enter it in the index lie was required to keep. Articles 6790, 6792, 6793, Vernon’s Statutes. In the absence of testimony showing the fact to be otherwise, the court, we think, had a right to presume that the clerk discharged his duty and without delay duly recorded the trust deed and noted it in the index. The testimony was sufficient to support the finding of the court that Rutland in buying the land relied upon the abstract as correctly showing the condition of the title, and would not have purchased same had the existence of the trust deed been noted therein. The assignments are overruled.

[4] It is next insisted that appellant,. if guilty of negligence as charged against it, was not liable as determined by the judgment, because it did not participate and share in the fruits of the fraud its negligence enabled Mortimer, Weathersby, and the Brownings to practice upon Rutland. To render it liable it was not necessary that appellant’s negligence should, have been the sole cause of the loss sustained by Rutland. It was sufficient that its negligence concurring with the fraud of Mortimer, Weathers-by, and the Brownings caused the loss. 29 Cyc. 496, and authorities there cited; 1 Thompson on Negligence, § 75; 3 Thompson on Negligence, § 2779.

[5] Finally, it is insisted that the judgment is for a sum in excess of that claimed in the petition, and therefore is fundamentally erroneous. This contention is based on the fact that Rutland, though he alleged the damages he claimed to be $2,500, did not state the items thereof further than to allege that he paid “the defendants” $1,800 for the land, and “paid the further sum of $250 on certain other debts against the land which he assumed and agreed to pay.” The sufficiency of the petition was not questioned on the ground that the damages claimed were not more particularly stated therein. Testimony on the part of Rutland admitted without objection showed he had suffered damages in the sum of $2,118.25, as found by the court. We do not think the judgment was erroneous as claimed by appellant.

The judgment is affirmed.

other cases see same topic and XEY-NUMREH in all Key-Numbered Digests and Indexes