Houseman v. Girard Mutual Building & Loan Ass'n ( 1876 )

Mr. Justice Sharswood

delivered the opinion of the court,

This was an action instituted in the court below by the defendants in error to recover from the plaintiff in error, who was formerl^recorder of deeds for the county of Philadelphia, damages for a false certificate of search issued by him, or by his authority. That such a certificate was issued false in fact ; that it was ordered and paid for by the defendants, and that in consequence they suffered damages, were points not in dispute. That the recorder is primá, facie liable to respond in damages for such false search, has been settled in McCaraher v. Commonwealth, 5 W. & S. 21, and is no longer an open question.

It was decided by the present Chief Justice at Nisi Prius, in Commonwealth v. Kellogg, 6 Phila. R. 90, that this liability is to the party who asks and pays for the search, and does not extend to his assigns or alienee.

The contention here all grows out of the fact that the search in this case, by the request of the 'conveyancer of the defendants, was ordered and paid for by the owner of the premises, in order that he might obtain a loan of money on mortgage from the defendants, and the certificate wTas so used, and the money so obtained.

It is urged, that by the employment of the owner as the agent for this purpose, the defendants are affected with this knowledge of the existence of the mortgage, which was omitted in the certificate. This is a very familiar principle and well settled. But it is equally well settled that the principal is only to be affected by knowledge acquired in the course of the business in which the agent was employed. This limitation of the rule is perfectly well established by our own cases, and it is not necessary to look further: Hood v. Fahnestock, 8 Watts 489; Bracken v. Miller, 4 W. & S. 110 ; Martin v. Jackson, 3 Casey 508. It is a mistake to suppose that it depends upon the reason that no man can be supposed to always carry in his mind a recollection of former occurrences, and that if it be proved that he actually had it in his mind at-the time, the rule is different. It may support the reasonableness of the rule to consider that the memory of men is fallible in the very best, and varies in different men. But the true rea.son of the limitation is a technical one, that it is only during the agency that the agent represents, and stands in the shoes of his principal. Notice >to him is then notice to his principal. Notice to him twenty-four hours before the relation commenced is no more notice than twenty-four hours after it had ceased would be. Knowledge can be no better than direct actual notice. It was incumbent on the plaintiff to show that the knowledge of the agent, to use the accurate language of one of our cases, “ was gained in the transaction in which he was employed.” There was not only no evidence of this offer by the plaintiff, but it was plain that it had been gained before, and in an entirely different transaction. It is not necessary to consider in this view of the matter whether the alleged agent was really such, or only the servant or clerk of the conveyancer.

It is urged that the conveyancer of the defendants, in the employment of the owner, who was the applicant for the loan, and interested, therefore, to obtain clear searches, was guilty of negligence, which is imputable to his constituents, and will, therefore, bar their recovery. But this is to maintain that a man is to presume fraud or forgery in one, whose character is good, and that if he does not he is primá facie negligent. When the scrivener received a clear certificate under the undoubted official seal of the recorder, he surely was not bound, to presume that a fraud had been committed on the recorder or his clerk, nor was there any evidence from which such fraud could be inferred. If there was no such presumption, neither would there arise any presumption beforehand, that the owner would succeed in corrupting or deceiving the clerk or servant of the plaintiff. Without some such presumption, how can it be said that it was primá. facie evidence of negligence ? that the owner was employed in the mere ministerial service of ordinary paying for and procuring the certificate ?

We are of opinion that the learned judge was right in directing a verdict for the plaintiffs below.

Judgment affirmed. •