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Opinion of the Court.

à concurrent liability of the Maumee Company because of the breach of its contract of carriage. Such relations are alleged in the pleadings and they appear in the evidence. The original plaintiff was wholly without fault contributing to his injury. His right to recover against one, or both of the companies, is entirely clear. If the collision resulted solely from the negligence of the Interurban Company the liability should ultimately fall upon it. But that liability may be enforced in the same action as the liability of The Maumee Company for the breach of its contract. The original plaintiff was obliged neither to waive his right of action against either company, nor to choose at his peril against which company he would bring his action. We are aware of no rule of law which requires several actions to determine the rights and liabilities of the parties in such a case. That they may be determined in one action appears from Morris v. Woodburn, 57 Ohio St., 330; Chicago v. Robbins, 2 Black, 418; City of Rochester v. Campbell, 123 N. Y., 405.

The original plaintiff, upon the principles already stated, may be entitled to judgment against both companies, though of course he is entitled to but one satisfaction. It will be proper upon a re-trial of the cause, as it would have been upon the original trial, by special interrogatories to the jury and the action of the court upon its answers thereto, to determine, if such shall appear to be the truth, that the Interurban Company is liable because of its sole negligence, and The Maumee Company because of its breach of contract, the execution to run firstly against the former com

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Syllabus.

pany, and if it be not satisfied, then against the latter

The circuit court properly reversed the judgment and remanded the cause for a new trial, and its judgment will be affirmed.

Judgment affirmed.

SUMMERS, C. J., CREW, SPEAR, Davis and PRICE, JJ., concur.

THOMAS V. THE GUARANTEE TITLE & TRUST

COMPANY.

Action against an abstracterFor négligence in certifying title-Does

not sound in tort-Must be founded on contrac' Abstractor liable only to employer-Usage can not create contract-Doctrine

of caveat emptor-Law of privity of contracı. 1. An action against an abstracter to recover damages for negli

gence in making or certifying an abstract of title does not sound in tort, but must be founded on contract; and the general rule is that an abstracter can be held liable for such negligence only to

the person who employed him. 2. Usage or custom cannot create a contract or liability, where none

otherwise exists. A usage or custom can only be used to explain, or aid in the interpretation of, a contract or liability existing independently of it. It cannot be permitted to contradict or vary the express terms of a contract, nor to vary the legal import

thereof. 3. A custom which would relieve a purchaser from the obligations

imposed upon him by the doctrine of caveat emptor, which requires a vendee to protect himself by express covenants and investigation of the title which he is to acquire, is contrary to law.

(No. 11161-Decided February 23, 1910.)

ERROR to the Circuit Court of Cuyahoga county.

Statement of the Case.

The plaintiff in error in his petition, as amended in the court of common pleas, averred that on or about the 28th day of September, 1899, one Charles D. Cavanaugh had a life estate under the will of his father Charles Cavanaugh in certain real estate situated in Cuyahoga county and described in the petition; that on or about the said date Charles D. Cavanaugh employed the defendant to prepare and deliver to him an abstract of the title to said real estate and of the encumbrances thereon, and to certify to the correctness of such abstract; and that accordingly on said date, the defendant delivered to him such abstract with the following certificate: “We have examined the records of Cuyahoga county for title and encumbrances of the above described premises from the year 1795 down to the present date and the same appears good in Charles D. Cavanaugh,

, subject only to the above encumbrances by said record of this date.” The plaintiff also averred that the phrase "title good in Charles D. Cavanaugh” has a long established customary meaning in the community where it was used, to-wit: the meaning of a good title in fee simple. The plaintiff also averred that there was a custom in the community in which this transaction occurred which was well known to the defendant, that the owner of real property should procure an abstract or certificate of title and encumbrances whenever he proposed to sell or in any manner encumber his real estate; that it also was the custom, as the defendant well knew, for persons intending to lend money on mortgages or other encumbrances on · real estate, as well as for persons intending to

Statement of the Case.

buy real estate, to demand the production and delivery of an abstract of title to said property or a certificate of the title thereto with the encumbrances thereon; and that it was the custom of persons so making such demand to rely on such documents relating to the title and encumbrances on said premises in receiving or accepting any transfer, mortgage, or other encumbrances thereon; and that as the successive encumbrances or transfers were made of such real estate, the aforesaid abstracts or certificates were from time to time extended to show the state of the title and encumbrances at the time of the intended transaction; and that it was not the custom of the person or persons so extending or bringing up to date the said abstract or certificate to do over again the work which had already been done in the preparation thereof, but that, on the contrary, it was the custom in extending said abstracts or certificates, simply to search the records of the county in which the property was situated from the date of the last succeeding certificate up to the date desired by the person desiring such extension to be made. Plaintiff also alleged that the defendant not only knew this custom, but also knew that such abstracts or certificates were meant to, and did, circulate in the community and pass from assignors to assignees of such real property, and be relied on by each successively for an indefinite period of time. The plaintiff also alleged that defendant was guilty of negligence in issuing the certificate aforesaid, that the title was good in said Charles D. Cavanaugh, when in fact he had but an estate for life therein. It was further averred in said

Argument for Plaintiff in Error.

amended petition that the aforesaid certificate was, on October 11, 1899, extended by the defendant to and including said date, and thereafter extended by the defendant to May the 24th, 1902, and afterwards extended by the Cuyahoga Abstract Company to June the 24th, 1902, and that on or about the last named date the said Charles D. Cavanaugh and his wife conveyed the aforesaid premises to the plaintiff by warranty deed, and the plaintiff says that by reason of said negligence of the defendant he lost the difference in value between the fee simple of said lands and the estate for life in said lands, to his damage in the sum of two thousand dollars, for which he prays judgment. The defendant demurred to the petition as amended, upon the ground that defendant does not state facts sufficient to constitute a cause of action, and the demurrer was sustained by the court of common pleas and, the plaintiff not desiring to plead further, judgment was rendered against him. This judgment was affirmed by the circuit court and the case is before this court on proceedings in error to reverse the judgments of the circuit court and court of common pleas.

Messrs. M. B. & H. H. Jolinson and Mr. T. H. Hogsett, for plaintiff in error.

This is an action of tort for negligence. It is not an action for deceit. It is not an action for breach of a contract. It cannot be too strongly emphasized that in this case no reliance whatever is placed upon the fact that the defendant in error was under a contract with Cavanaugh to use due

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