Norwood v. Barcalow , 6 Daly 117 ( 1875 )

Larremore, J.

There is no legal principle upon which this; action can be sustained. The plaintiffs were attorneys of the Bowery Savings Bank, and that relation, in the absence of any express agreement, was incompatible with the existence of any duty which they owed to the defendant.

This feature of the case distinguishes it from the class of cases upon an implied assumpsit, where a relation exists between two parties which involves the performance of a duty by one, and payment or recompense by the other, in which instance-the law implies, and the court may infer, a promise (Ogden v. Saunders, 12 Wheat. 341; Jackson v. Executors of Le Grange,, 3 Johns. 201).

But the evidence in this case warrants no such inference. The plaintiffs were employed by the bank to discharge a certain duty in reference to the safety and security of the proposed loan. It would have been competent for said bank to have exacted from the defendant the payment of the fee for examination of the title, as a condition precedent to said loan, but there was no such proof; nor was any general usage or custom as to. the payment of fees in such cases, shown to exist.

The conclusion therefore is inevitable, that the judgment appealed from should be affirmed.

Charles P. Daly, Oh. J., and Robinson, J., concurred.

Judgment affirmed.