Caltrider v. Weant

Digges, J., delivered the opinion of -the Court. The cause of action in this case is the alleged negligence of the appellee, ,a practicing attorney at law, in his failure to obtain a mechanic’s lien securing the payment of a claim for materials fiirndshed the contractor by the appellant, which claim had been placed in his hands for collection, with directions given to obtain the mechanic’s lien. WThen business is committed to .an attorney by his client, and for which the client is expedted to make compensation to the attorney, the law governing such a contract requires that the attorney act diligently in protecting and preserving his client’s interest.. In 2 R. C. L. 1012, it is stated: “The law ³⁴⁰ implies a promise on the part of attorneys that they will execute the business entrusted to their professional man¡age¡ment with a reasonable degree of oare, skill and dispatch, and they are liable to an action if gtuilty of a default in either of these duties -whereby their clients axe injured, and this liability of the attorney is not-.affected by the client’s diligence or the Want of it, unless ¡stipulated by special contract.” In 6 C. J. 704, it is said: “An attorney’s ¡duty, where be is especially instructed, is to follow the instructions of bis client except as to matters of detail connected with the suit, and he is1 liable for all loss resulting from his failure to follow such instructions with reasonable promptness .and oare.” And in 2 R. C. L. 1014: “Whenever an attorney disobeys the lawful instructions of his client and a -loss ensues^, he is responsible for snob loss.” 'This general doctrine has been recognized and laid down in a number of cases ¡decided by this Oourt.

Cochrane v. Little, 71 Md. 323 ; Watson v. Calvert Bldg. & Loan Assn., 91 Md. 25 . In tbe Cochrane case this Oourt adopted with approval tbe language of Lord Chancellor Cottenham in delivering the opinion in the case of Hart v. Frame, 6 Cl. & Fin. 193, 209: “A client who has employed an attorney has a right to bis diligence, his knowledge, and his skill; and whether he had not so much of these qualities' as he was bound to have, or having them, neglected to employ them, the law properly mlakes him liable for the loss which has ¡occurred to his employer.” The language used in the Calvert Bldg. & Loan Association case, supra, was: “An attorney at law is liable to bis client for the possession of a reasonable degree of skill in his pxofeission as well as for the exercise of a like degree of diligence in the conduct of the transaction about which he is employed. If he fail in either respect he will be responsible to his client for the loss which the latter may sustain therefrom. This responsibility of the attorney, although ordinarily enforced by an action of case for negligence in the discharge of his professional duties, in reality rests upon his employment by the client and is contractual in its nature.

Before the attorney can be made liable, it must ³⁴¹ .appear that the loss for which he .is sought to he held arose from his failure or neglect to discharge some duty which Was fairly within the purview of his employment.” The facts in the instant case are substantially that Miss Florence E. Oarr, being the owner of a tract of land in Reisterstown, Baltimore County, late in the year 1921 determined to have built a residence on ber property. At the time she had $1,500 and applied to the Reisterstown Thrift & Loan Association for .a mortgage of $2,500, so that with this amount, in addition to her own money, she might pay for the building proposed to he constructed. The association agreed to mate the lo>an upon the condition that the $2,500 loaned by it should be pooled with the money of Miss Oarr and placed in the Reisterstown Savings Bank, subject to the joint check of Miss Oarr .and the chairman of the building committee appointed by tbe association for the purpose of supervising the payment of said money. This arrangement was perfected by the appointment of a building committee, consisting of Welsh (chairman), Marshall and Wolf, and tbe money was placed, as agreed, in the hank, to he drawn out for the purpose of playing for materials and labor used and expended in the construction of the building, upon the check of Miss Oarr, eountersigined by Welsh, chairman of the building committee. .

The contract or agreement was then made by Miss O'arr with William H. Guest for the erection of tbe dwelling house, and a large portion of the lumber and building material entering into the construction was furnished to the contractor by L. O. Oaltrider, the appellant, the total price of which Was $1,586.20, of which amount the appellant had only received $714.24, leaving a balance then due of $871.96. A claim for this balance was in December, 1921, or January, 1922, placed iu the hands of the .appellee, an attorney, for collection, for the reason .that .the appellant had been unable to get further payments on this account from Guest, the1 contractor. At the time the claim was placed in the .attorney’s hands, the appellant, together with a Mr. Ducker and a Mr. Naylor, two other gentlemen who had claims against the ³⁴² contractor, went to the appellee’s office in Westminster, and consulted with him in regard to the collection of their respective accounts by filing a mechanic’® lien against the contractor and Miss Oarr. At first the appellee expressed douht as to being able to maintain a mechanic’s lien, for the reason that the appellant was a member of the building association which had loaned the money to- he poo-leid with the money of Miss Oarr and paid out upon the signature of Miss Oarr and the counter-sigji'atnre of the chairman of the building committee of the association; hut after investigation of the law the .appellee decided that a mechanic’s lien wo-uld lie, hut advised that efforts he made to- collect the money without resorting to that procedure at that time.

This advice was acted upon, and the attorney made frequent trips from Westminster to Reisiterstown to attend meetings of the building association, in an effort to- collect appellant’s claim and those of Mr. Du-ciker and Mr. Naylor. On Eeibruary 14th, 1922, he was successful in collecting from the building association and Mis-s O-arr the sum of $950, which ou April 19-th he apportioned among the three claims which he represented, paying to the appellant as Ms proportionate part the sum of $540.20, thereby reducing the balance due the appellant on account, of his material claim to the sum of $331.76. ¡Shortly after the $950 was collected by the appellee, it was decided by the appellant, and the appellee was so- instructed, to- proceed to- secure the mechanic?» lien for the balance then due. The appellee prepared the notice to Miss Oarr, the owner, as required by section 11 of article 63 of the Oode of Public General Laws of Maryland, which notice was dated M-arch 7th, 1922, and delivered to the appellant, to be by him personally served upon the -owner, Miss Oarr. This was accordingly done by the appellant within the time prescribed by said section 11, being wi-tMn sixty days after furnishing the last material, which was furnished on January 12th, 1922.

Nothing further was done by the appellant in reference to the laying of the lien, but this matter was left with the attorney to attend to, until, on or about July 31, 1922, it was discovered ¡that no- lien was of record in the ³⁴³ clerk’s office of Baltimore County, and Mr. Weant ait that time was so informed by the .appellant and officers of the building association. Upon being acquainted with this fact, Mr. Weant expressed surprise, and told appellant that he had prepared the papers and sent them by mlail from. Week minster, directed to t-he clerk of the Circuit Oourt for Baltimore County, Towson, with instructions to file, and that he could not understood why they were not of record. Section 23 of article 63 provides that: “Every such deibt shall he a lien until after the expiration of six months after the work has been finished and materials furnished, .although no claim has been filed therefor, but no longer unless .the claim shall he filed at or before .the expiration of that period.” In order to make effective a lien against the property of Miss Oarr, who was the owner and not the contractor, it was necessary to give her notice of intention to file a lien within sixty days from January 12th, the day upon Which the last material was furnished, and upon giving this notice a lien was created for the period of six months from January 12th, 19-22, or until July 12, 1922, and in order to continue the lien from and after that date it Was necessary that the lien he filed and recorded in the office of the clerk of the Circuit Court for Baltimore County.

As a matter of fact, no Ben w.a.s filed and recorded as prescribed by said section 23, and the six month® within which it could be filed having expired on July 12th, 1922, no Ben longer existed or could be subsequently obtained. Upon the appellant ascertaining that no Ben had been actually filed, he demanded of Weant that he be responsible for the balance due him, which dentad or request was refused, and .appellant, upon the refusal of the • appellee to guarantee the payment, thereupon informed the appellee that he would hold him responsible and would bring suit against him for the balance due. This suit was first brought in the Circuit Oourt for OarToll County, and upon motion of the plaintiff was removed to the Circuit Oourt for Howard County for trial, in which court, on April 7th, 1924, the ease was tried before a jury. After the conclusion of the ³⁴⁴ testimony offered in behalf of the plaintiff and defendant, the plaintiff offered four prayers and the defendant four prayers; whereupon the court granted the first prayer of the defendant and did not act upon any of the other prayers offered or the special exceptions; whereupon the plaintiff excepted to the granting of the defendant’s first prayer, and the ruling of the court in- this respect constitutes the tenth hill of exception.

There are ten exceptions; contained in the record, and the other nine are to rulings of the court upon the evidence during the pro'gress of the trial. The defendant’s first prayer, granted by the court and constituting the tenth exception, will he first considered. This prayer is as follows: “The defendant prays the court to •instruct the jury that under the pleadings in this ease there is no legally sufficient evidence from which, the jury may find for the plaintiff and their verdict must be for the defendant.” The appellant contends that the granting of this prayer wias error, for the reason that it is a Variance prayer, and is not in accord with the provisions of chapter 110 of the Acts of 1914, now codified as section 9A of article 5 of the Code of Public General Laws-. Whether or not the contention of the appellant above s-et forth is correct is of no; consequence in the view we fake of this case.

If the prayer granted by the lower court was intended as a variance prayer, it should not have been granted because it did not comply with the statute. On the other bland, if this prayer wias intended as a general demurrer - to the evidence, and in our opinion it Was so intended, it wias also improperly granted for the reason that we find from the record sufficient evidence to have submitted the ■case to the consideration of the jury. We will proceed to consider the case upon the theory that this prayer granted by the court wias intended to he, and Was, treated by the lower court .as being a general demurrer to the evidence; prayer. The appellee’s first contention i:s thlat there is no- evidence in the record which shows that the notice required by section 11 of article 63 to be served upon the owner, Mis's Oarr, and which was prepared by the appellee 'and delivered to the appellant for1 service upon Miss, O'arr, Was in fact served ³⁴⁵ within sixty days from January 12th, 1922, as prescribed by the statute, and that it was incumbent upon the plaintiff to show that the alleged negligence of Weant in not filing and having recorded the mechanic’s lien resulted in injuring the plaintiff, and that if ithe notice of intention to file a lien was not served Upon Miss Oarr within the time prescribed by the statute, no lien could he legally obtained, and therefore it was of no consequence to the appellant whether Weant was negligent or not in the failure to file and have recorded a lien within the six months period.

If there is no evidence in the record legally sufficient for the jury to find that the notice Was served upon Miss Oarr by the appellant within sixty-days from January 12th, ,1922, this contention of Ithe appellee is unanswerable, .and it therefore becomes necessary to examine the testimony as contained in the record in respect to the time of service of the notice of intention to claim a lien. The only evidence in the record on this point is contained in the testimony of the appellant, and is as follows: “Q. What did yon 'employ him to do? A. I asked him whether there could be a lien filed on the property. After his investigation of the matter he said there could and he made out notices.

Three of us went together. Wei had different claims, the plumber and electrician had claims and we had some. He made notices out;for us all and advised ns to serve them in person on Miss Florence E. Oarr, the owner of the property, or if we did not do that, we had better1 do it by. registered mail and to he sure to get a return receipt to know it reached their hands. We all three of us delivered our lien notices to Miss Oarr personally in Baltimore, so as to he sure the matter Was served according to Ms direction.

Q. Did Mr. Weant tell you you had to serve notice on the owner of your .intention to lay a lien ? A. Yes, sir. Q. Did he prepare the notice to that effect ? A. Yes,