54 Mich. 104 | Mich. | 1884
The defendant was register of deeds of Calhoun county in 1874 and 1875, and was sued by plaintiff in an action of trespass on the case. The declaration contains three counts. The second count is the only one upon which a recovery can be supported, and it states that on November 15, 1875, one John J. Lovett was the owner in fee of certain land, describing it, and that there were three certain mortgages upon it at that time, which the pleader numbers one, two and three, and states the parties, dates of mortgage, and time and place of the recording of the same, respectively; that they were all valid and subsisting incumbrances on the land; that on the 15th day of November, 1875, defendant was register of deeds of Calhoun county, and acted as such, and had held the office from the first day of January, 1873; that mortgage number three was left with him for record April 21, 1874, and his fees paid for recording, and thereupon he forthwith entered it in the entry-book of mortgages kept in his said office, pursuant'to law, in his own handwriting, and thereafter, forthwith, on said 21st of April, 1874, recorded said mortgage at full, pursuant to law, in Liber A. M., at page 133, and on said day entered in the local index to said liber, and also in the general index to mortgages in his office, reference to said mortgage, and to the liber and page wherein, the same was of record, and the description of the land therein, which entries and record books remained in his office, and he knew, of his own knowledge, of the existence of said mortgage, and of the record of the same, then being in his said office; that plaintiff, upon making the bargain with Lovett for the purchase of the land, and before completing the purchase or
We have set out this count quite fully and, in some parts, literally, for the reason that the errors assigned are based mainly upon alleged variances between the declaration and proofs, and upon the further allegation that the declaration is based upon the fraudulent conduct of defendant, and that no recovery can be had unless fraud is proved as the cause of the injury. If the plaintiff were to be confined to the third count of her declaration the objection made would be good, as that count alleges the statements to have been made falsely, willfully and fraudulently, instead of negligently and carelessly; but if any one of the counts contained in. the declaration is good it will support the verdict. It is quite evident that the gist of the second count is based upon the negligence of the defendant in not ascertaining and informing plaintiff of the existence and record of mortgage-number three. It contains considerable redundancy of expression, and some immaterial allegations which might have been omitted. The contract, which formed the basis of the obligation of the defendant, and the negligence or careless performance thereof by him, are set forth with sufficient certainty. The negligence alleged consists of the careless performance of an obligation assumed by contract. The averments that defendant entered the mortgage in his own handwriting, and afterwards recorded it, may be treated as surplusage. Such fact was wholly immaterial, so far as fixing liability for a careless or negligent search. The entries and records were competent evidence as tending to prove negligence, whether they appeared to be in his own handwriting or not. As stated by this Court in Batterson v. Chicago & G. T. Ry. 49 Mich. 184, cited in defendant’s brief, it was incumbent on the plaintiff to specify the grievance of
The grievance alleged by plaintiff in the second count of her declaration was that she entered into a contract with defendant whereby he undertook to examine the records in his office and ascertain and inform the plaintiff if mortgages numbers one and two were the only incumbrances on the land described, and that he so carelessly and negligently made such examination that he failed to give her any information of mortgage number three, by reason of which she was damnified. The combination of material facts, both as to negligence complained of and how such negligence resulted to her injury, are sufficiently alleged. In general, whatever circumstances are necessary to constitute the cause of complaint must be stated in the pleading, and all beyond is surplusage. 1 Chit. PI. 214.
The objection that there was a variance between the abstract offered in evidence and that described in the declaration is removed by the evidence which tended to prove that entries had been made upon the abstract after November 15, 1875. The first count alleged that the defendant certified to the abstract, and counsel objected that the entry under formal certificate, which had been. made at a prior time, of the words : “Examined to date, November 15, 1875 ; Chas. D. Holmes,” was not a certificate, and in that respect there was a variance. Without stopping to decide whether it is a certificate or not, it was admissible under the second count as a part of what transpired on that occasion between the parties, and in connection with the contract alleged in this count.
The defendant’s counsel submitted to the jury certain questions in writing, to be answered by the jury in case they should find a verdict for the plaintiff, which the jury answered as follows : “First. Did the plaintiff make a contract with the defendant to correct an abstract of the title to the property named in the plaintiff’s declaration ? The jury answered, ' Yes.’ Second. Did he make and correct the abstract for John J. Lovett? The jury answered, ' No.’ Third. Did he correct the abstract before or after the sale to plaintiff? The jury answered, ' Before.’ Fourth. Did the defendant receive any pay for his services, and who from ? The jury answered, ' Waived payment.’ Fifth. Did the plaintiff rely upon the examination of the abstract by Townsend as to whether he, Townsend, would loan her money on that title? The jury answered , ‘ No.’ Sixth. Did the defendant use reasonable care in correcting that abstract ? The jury answered, 'No.’”
These findings of fact establish the contract entered into between the parties, and the failure on the part of the defendant to exercise reasonable care in the performance of his duty, and the record before us shows that evidence was introduced to prove the other material facts necessary to be estab
The charge of the court was in accordance with the views herein expressed.
Perceiving no error, the judgment of the circuit court is affirmed.