Thomas v. Schee

May 23, 1890
Reporters:
, ,
Before:
Given
Given, J.

i. vendors and Faisehabstoact fied by yen‘?’ sionainegjfgenoes. — I. It is apparent from the remarks of the court during the trial, and the instructions, that case was submitted upon the’ first count a^one ; but it is not clear why, as there was some testimony tending to sustain the charge of fraud in the second count, namely, that of Warren Walker. This action of the court was without prejudice to the defendant, and, as he alone appeals, we are not called *240upon to consider it. Appellant contends that his liability must rest upon either fraudulent representations, by use of the false abstract knowingly made, by which plaintiff’s money was obtained, or upon his having made the abstract. as an attorney, and having been guilty of such negligence in making and certifying to it as renders him liable for the damages resulting from plaintiff’s reliance thereon. He insists that the first count does .not state a cause of action upon either of said grounds, and, therefore, the court erred in not-instructing the jury to find for the defendant, and in overruling his motion for a new trial.

While the first count is not as definite as might be, or as it should have been made on motion, we think the matters alleged as ultimate facts, fairly construed, show a cause of action on contract. It shows that defendant, a professional abstractor, as an inducement to plaintiffs to pay him six hundred dollars for his land, presents them with an abstract showing1‘title in him. He states to them by his certificate on the abstract that he had carefully examined the title to the lands, and that the abstract was “a full, complete and correct abstract of all the conveyances upon record affecting the same.” It was for the land, and this personal promise and assurance as to the title, that the plaintiffs paid their money. The abstract was prepared to be used as an inducement to whoever might apply to purchase the land. The plaintiffs applied, and the abstract was presented. It was as much prepared for them as if it had been upon their order. Surely, the liability of the defendant should not be lessened because he was both vendor and abstractor.

While • it may be true, as contended, that, as an abstractor, defendant was only bound to use reasonable care, diligénce and skill, and that no element of guaranty enters into such employment, we think the count shows a want of reasonable care, diligence and skill, and that, as vendor, he did, by his certificate on the abstract, promise and agree that the title was as stated therein. *241These statements, with that as to the failure of the title, and the causes, show a cause of action against the defendant, not only for failing to exercise reasonable care, skill’ and diligence in preparing the abstract, but upon his contract of warranty that the title was as shown in the abstract. It is said that the abstract only covers conveyances, and does not purport to cover anything else. ’ It is certified as being “a full, complete and correct abstract of all conveyances upon record affecting the same.” It was not correct in showing a conveyance of this land to D. W. Inman, nor in showing a decree quieting the title in defendant as against Ray Thomas, there being no such conveyance or decree. We think the first count shows a cause of action not only upon an implied contract that defendant had exercised reasonable care, skill and diligence in preparing the abstract, but upon his promise that the title was as stated therein. We are also of the opinion that the testimony sufficiently sustains the action, as stated in the first count.

s. the same: evidence. II. Proceeding upon the theory that the case was to be submitted upon the first count alone, as charging the defendant with a want of reasonable skill and diligence in preparing the abstract, defendant made several objections to testimony which were’ overruled. He also offered testimony tending to show how the mistakes as to the title arose, and that he believed that the title was as stated in the abstract. The cause of action being as we have stated, there was no error in overruling these objections, and in excluding the testimony offered. Defendant’s liability under the first count in nowise depended upon whether he knew of the defects in the title or not. Appellant complains that the testimony of Warren Walker was not withdrawn. Walker was permitted to testify to a conversation prior to the conveyance to plaintiffs, in which he told defendant about the action then pending against him, by Ray Thomas, to quiet his (Thomas’ ) title to the land. The complaint is that the abstract does not cover *242suits. It is a sufficient answer to say that it purported to be full, correct and complete, when it was not.

3. : inter-Se??par-r~ ties piamtiff. III. The jury were instructed that, if they found that it was arranged between Schee, Thomas and Youman that Youman should give Schee five hundred dollars’ worth of barbed wire ^ land, and that Thomas should pay Youman four hundred and fifty dollars in notes and a team of horses therefor, Schee to convey the land directly’ to Thomas, and all this was one transaction, or that Schee had arranged with Youman for the sale of the land on the condition that the title should be satisfactory to Thomas, and further found that, to induce Thomas to accept the conveyance, defendant showed and delivered to him the abstract of title in evidence, and that Thomas relied thereon, and in pursuance of such inducement paid the four hundred and fifty dollars in notes and a team for the land, and received a conveyance in pursuance of said agreement, they should find for the plaintiffs.’ Appellant contends that there was nothing to warrant the court in telling the jury that they might find for the plaintiffs, if, in addition to certain other facts, they found that Schee had so arranged with Youman. If Youman had agreed with Schee to give him five hundred dollars in barbed wire for the land, on condition that Thomas was satisfied with the title, and they came together and as one transaction agreed as stated in the instruction, Schee’s liability is to these plaintiffs, and not to Youman. The foregoing discussion disposes of all exceptions to instructions given and refused, and leads us to the conclusion that there was no error therein.

4>___. i-ogatories.tei” . IV. The defendant requested that the following-special findings be submitted: “ First. Did plaintiffs, or either of them, buy the land in ques-^on from the defendant ? Second. Did plaintiffs, or either of them, pay defendant anything for the land % Third. Did plaintiffs, or either of them, pay or promise to pay defendant anything for *243the abstract of title, or for any opinion or statement concerning the same, or validity of the title to the land ? ” These requests are riot for findings upon any particular questions of fact, but rather for conclusions from several facts. Home Ins. co. v. Northwestern Packet Co., 32 Iowa, 223. The only conflict as to the manner of the transaction was whether Youman bought from Schee and then sold to Thomas, or whether they three agreed together as one transaction touching payments and conveyances. There was no question as to how the payments were made, nor was it claimed that plaintiffs paid defendant for the abstract separately from the general transaction. It is not error to refuse to submit to the jury particular questions not ultimate in their nature, or which could not well be considered or answered without danger of confusion and misrepresentation. Phoenix v. Lamb, 29 Iowa, 352. The court cannot be required to propound to the jury interrogatories which call for the finding of facts not necessarily determinative of the case. Hawley v. Railway Co., 71 Iowa, 717. We see no error in refusing to submit these questions. Our conclusion upon the whole record is that the judgment of the district court should be Aeeirmed.