Ferrier Land Co. v. Mortgage Guarantee & Title Co. ( 1932 )

WALSH, J.

Heard on demurrer to last count of amended declaration. The grounds of demurrer are, in substance, that matters separate and distinct from the other counts of the declaration are alleged therein; that said alleged matters should be sued in as-sumpsit rather than tort; that there is a misjoinder of counts in the declaration.

The fifth count of the amended declaration sets forth that the defendant is engaged in the business of examination of titles and of title insurance; that the company agreed to examine the title to certain real estate for the plaintiff and to issue it a title policy for the same; that the plaintiff bought the real estate as a result of improper advice received from defendant; that after spending a large sum of money on the premises, plaintiff found a defect in the title which prevented his full enjoyment of the property; that plaintiff notified defendant of this condition of the property; that the defendant thereupon undertook to represent plaintiff to protect plaintiff’s interests, advised plaintiff as to its course of action in the premises and agreed to notify plaintiff if foreclosure of a mortgage on the real estate was attempted. The breach of this undertaking through the negligent disregard of the duty of the title company to the plaintiff and the loss to the plaintiff as a consequence thereof are then alleged.

The duty of the title company in assuming to represent the plaintiff in the matter and to protect its interests in the premises described and to notify plaintiff in the event that foreclosure of the mortgage thereon was attempted arose out of an independent promise of the title company outside of its title policy. Such an agreement ordinarily involves an undertaking to carry out such understanding or agreement with reasonable care and diligence. The duty upon the title company is to exercise in such employment such skill as it possesses with reasonable care and diligence. In offering its services to plaintiff in this connection, it held itself out to plaintiff as possessing the skill and diligence commonly possessed by others in the same employment.

An action of tort may well lie for the negligent performance of a duty imposed by the terms of an express contract. The same plea may be pleaded and the same judgment may be rendered as to each and'all counts of the declaration in the present case, hence there can be no misjoinder.

Demurrer overruled.