87 Iowa 233 | Iowa | 1893
, , . aot?oneforrs: umitatfonof actions.I. The statute of limitations commences to ran from tl e time a cause of action accrues. Code, section 2529. By section 2530 it is provided that in actions for relief on the ground of fraud or mistake the cause shall not be deemed to have accrued until the fraud or mistake has been discovered. The petition is without allegations to bring the case within the provisions of the latter section, and, hence, we are to inquire when the cause of action accrued without reference to its being grounded on fraud or mistake. The pith of the contention by counsel is whether the action is one ex contractu, so that the cause of action accrues with the actual breach of the contract, or ex delicto, so that the action accrues whenever consequential damages result because of the tort. We are directed especially to the averments of the petition wherein recovery is sought because of negligence in preparing the abstract, and for the money expended in the purchase of the mortgage because of such negligence; and it is said that “no legal damage was sustained on the part of the plaintiff until the purchase of the Kellogg mortgage.’7 We may not correctly apprehend what is meant by the term “legal damage.77 If it‘means special damage, such as that alleged, the proposition is correct. If it means general damage, such as the law infers because of the breach, without its being specified, it is not correct. Of course, a cause of action does not accrue in such a case until damages are recoverable, and, hence,
The appellant, in support of its theory, that the action is ex delicto, cites the following from Angelí on Limitations (section 71): “The action of assumpsit lies to recover damages for consequential wrongs or torts, which, though they are ex delicto, are quasi ex contractu; and they arise from malfeasance, or doing what the defendant ought not to do; nonfeasance, or not doing what he ought to do; and misfeasance, or doing what he ought to do, improperly.” It also cites the following from Addison on Torts (page 13): “A tort maybe dependent upon, or independent of, contract. If a contract imposed a legal duty upon a person, the neglect of that duty is a tort founded on contract, so that an action 'ex contractu for the breach of contract, or an action ex delicto for the breach of duty, may be brought at the option of the plaintiff.” It is then urged that this is “an action for misfeasance,” and, hence, based upon tort. A few considerations will lead to a correct conclusion on this particular proposition, and aid much towards a solution of the entire case. We get the spirit of the rule to be deduced from the above citations, so far as it pertains to this case, by understanding the last statement in the citation from Addison on Torts: “If a contract imposes a legal duty upon a person, the neglect of that duty is a tort founded on contract,” and in such a case the injured party may elect to sue for the tort or breach of the legal duty, or sue for the breach of contract. Now, what is the true significance of the rule stated? We think it is this: When the law imposes a duty from one person to another, independent of contract, the duty thus imposed is a legal one, one enjoined by the law. Its neglect is a tort. Now, if the parties by
In the case at bar the defendant, independent of the contract, owed no duty to the plaintiff. The neglected duty was one alone enjoined by contract. The failure to perform by the defendant was a failure to discharge its agreement, which is solely a breach of contract. No refinement of reasoning can, or should, avoid the conclusion. The fact that the act is alleged as negligently done does not change the situation. It is an allegation only as to the manner of making the breach. The liability of the defendant company in no way depends on the fact of negligence. The allegations of the petition show an absolute undertaking ‘ ‘to furnish a full, complete and correct abstract to the plaintiff, correctly showing the liens of mortgages, judgments and otherwise.” The demurrer admits such an undertaking, and the allegation of negligence cannot have the effect to change the action from one on contract to
We may now notice the claims as to when the statute commences to run. With our conclusion as to the character of the action it is probable the appellant might not claim that the authorities cited are applicable. We refer, however, to a few as indicating the character of all. Reference is made to 2 Greenleaf on Evidence, sections 433 and 434. These sections have reference to cases of tort, and actions on the case sounding in tort, and it is there stated as the rule that in such cases, where the injury is consequential, and the right of action is founded in special damages, the statute commences to run from the time the special damages accrued. Also, where a statute commences to run from the time of the “act done,” and the act was lawful as to the plaintiff, the act is regarded as “done” when the damages result. But this case is not within either rule. Section 435 is the one applicable to this case, and it states: “In cases of contract, the general principle is that the statute attaches as soon as the contract is broken, because the plaintiff may then commence his action.” As especially applicable to this case, it is further said in the same connection: “And, though special damage has resulted, yet the limitation is computed from the time of the breach, and not from the time when the special damage arose.
The appellant cites as “one of the best considered cases on this subject,” Bank of Hartford Co. v. Water
We do not forget that it is averred in the petition
The fourth proposition discussed by the appellant is as to the strict accountability to which abstractors are held by the law, and we need not discuss it. The reasoning is strong, and, barring the application to this case, it accords with our view of the law. That strict accountability, we think, must be required in a case of this kind, within the period that .the law fixes for actions upon unwritten contracts, where neither fraud nor mistake is the ground for relief.
The judgment of the district court is in harmony with our view, and it is aeeib.med.