111 Ky. 759 | Ky. Ct. App. | 1901
Opinion op the court by
Reversing.
John S. Ducker, who was an attorney at law of the Campbell county, Ky., bar was employed in 1889 by appellant as its attorney for the State of Kentucky. At the time of the employment he executed to appellant a bond, the material provisions of which, are as follows: “The condition of the above obligation is such that whereas, the said John S. Ducker has been duly appointed as attorney for the State of Kentucky of the said Humboldt Building Association Company: Now, if the said John S. Duck-er shall well and faithfully perform all his duties as said attorney for the State of Kentucky of the said Humboldt Building Association Company during his continuance in said office, then this obligation shall be void; otherwise it shall be and remain in full force and effect.” It is alleged in the petition that the duties of the attorney were that he would examine all titles submitted to him by the company upon which loans were sought; would prepare all mortgages and other papers' necessary in making ■loans of money for the plaintiff, and would see that all liens upon the property mortgaged to secure the same .were properly released; would lodge all papers for record which was necessary to be so lodged to secure the loans made; would receive from the plaintiff the money to be loaned, and turn the same over to the person to whom the loan was made, but only after he had taken all and every step necessary to be taken to secure to the plaintiff the first lien upon the property taken as a security for the loan. During the continuance of the relationship stated, appellant made a loan to Helen Morrison of $5,000 on
The execution of the bond sued on added nothing to the attorney’s liability or undertaking to the obligee. It merely secured his faithful performance of such duty as.
It is stated in argument that the local act in this case was invoked at a time when the. bar of Kenton and Campbell counties were in great doubt whether it had been repealed by the new Constitution, which had but lately been adopted in this State; and that the attorney exercised his judgment, now seen to have been erroneously, but honestly. That, however, is a matter of defense. Whether this question raised actually existed in the minds of the profession then is one of fact. If it did, and the attorney honestly believed that the subcontractors! had no lien because of that fact, then the jury may be warranted in finding for the defendants. But if the attorney was ignorant of the 'existence of the statute, or had forgotten is at the time of this transaction, or if, knowing of it, he carelessly failed to acquaint himself with the facts as to the subcontractors’ claim for liens till after he had paid out appellant’s money, we are of opinion that he would be liable. However, the existence or non-existence of these actionable facts, as well as of those constituting the defense, are such as properly should be found by a jury under appropriate instructions, or by the trial court if a jury is not demanded.
Judgment reversed, and cause remanded, with directions to overrule the demurrer, and for proceedings not inconsistent herewith.