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Argument for Plaintiff in Error.

care in the preparation of the certificate. The rights of the plaintiff in error are claimed to exist independent of that contract. The theory of our case is perfectly plain and simple.

Perhaps the most accurate analysis of the requisites for actionable negligence is found in 1 Shear. & Redf. on Negligence (5 ed.), Section 5.

The damage to the plaintiff in error is apparent and no intervening agency broke the causal connection between the breach and its natural consequences. It will be necessary to discover the foundation of the general rule which imposes on one a duty to use care with respect to another and to state and analyze at more than usual length the cases analogous to the one at hand, for the reason that the present case is one of first impression. Hence, we must have recourse to analogies. The first class of analogous cases which we ask the court to consider is the so-called sub-vendee cases.

It is a universally established rule of law that where a manufacturer or dealer in dangerous or poisonous articles negligently prepares or labels the same, he is liable not only to his immediate vendee but also to sub-vendees who may be injured as a result of that negligence. Thomas v. Winchester, 6 N. Y., 397; Devlin v. Smith, 89 N. Y., 470; Heaven v. Pender, L. R., 11 Q. B., 506; Davis v. Guarnicri, 45 Ohio St., 470; George v. Skivington, L. R., 5 Ex. (1869), 1; Balm Co. v. Cooper, 83 Ga., 457.

The second class of cases to which we call the court's attention is the so-called "exchange car”

Glynn V. Railroad Co., 175 Mass., 510;

cases.

Argument for Plaintiff in Error.

Fowles v. Briggs, 116 Mich., 425; Railway Co. v. Merrill, 65 Kans., 436.

And we have three cases in which recovery was allowed. Teal v. Mining Co., 84 Minn., 320; Boyd v. Railway Co., 45 S. E. Rep., 186; Railroad Co. v. Snyder, 55 Ohio St., 342.

Closely resembling, in principle, the preceding "leased car” cases is the "leased premise" case, Manufacturing Co. v. Shoe Co., 71 N. H., 522.

A third class of cases involving the application of principles similar to those which should govern the present case is the telegraph cases. Telegraph Co. v. Dryburg, 35 Pa. St., 298; Tobin v. Telegraph Co., 146 Pa. St., 375; Telegraph Co. v. Dubois, 128 I11., 248; Laudie v. Telegraph Co., 126 N. Car., 431.

Three time-table cases deserve consideration. Denton v. Railway Co., 5 E. & B., 860; Heirn v. M’Coughan, 32 Miss., 17; Gordon v. Railroad Co., 52 N. H., 596.

Another collection of cases bearing a striking resemblance both in principle and in their history to cases like the present, are those in which the inhabitants of a city who have lost property by fire have sought to recover against a water company which has contracted with the city to furnish water for use in extinguishing fires and to maintain a certain pressure for that purpose. Fislier V. Water Supply Co., 128 N. Car., 375; Mugge v. Water Works Co., 52 Fla., 371; Trust, etc., Co. v. Fisher, 200 U. S., 57; Building & Loan Assn..v. Bank, 118 Tenn., 678.

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Argument for Defendant in Error.

Young

We now call attention to another class of cases in wnich liability has been held on the same ground as that contended for in the present case. v. Grote, 4 Bing., 253; Merritt v. Boyden, 191 Ill., 136; Bishop v. Weber, 139 Mass., 411; Edwards v. Lamb, 69 N. H., 599; Harriott v. Plimpton, 166 Mass., 585; Cann v. W'ilson, 39 Ch. Div., 39.

If caterers, physicians and valuers, because of the business in which they are engaged, owe a duty of care to that class of persons who may be expected to rely upon their express or implied representations, it is difficult indeed to see why an abstracter of title does not in the same manner owe a similar duty to that class of persons who may reasonably rely on statements or representations of the abstracter. 1 Cyc., 214; Chase v. Heancy, 70 I11., 268; Lattin v. Gillette, 95 Cal., 319.

We next call the court's attention to some cases in which the liability of corporation directors for negligent reports, etc., has been the question at issue. Houston v. Thornton, 122 N. Car., 365; Seale v. Baker, 70 Tex., 283; Kinkler v. Junica, 84 Tex., 116; Railway Co. v. Bank, 56 Ohio St., 351; Mason v. Moore, 73 Ohio St., 275.

Messrs. Goulder, Holding & & Masten, for defendant in error.

It may be said in passing that the facts plead in the amended petition as to custom do not constitute such a custom as the law will recognize, in that there is no allegation that the custom is the universal mode of dealing in the community.

Argument for Defendant in Error.

Lawson on Usages and Customs, 41; Porter v. Hills, 114 Mass., 106; Lowe v. Lehman, 15 Ohio St., 179; Wrightson v. Bettinger, 2 C. C., 381.

Moreover, the custom alleged by its very nature is not compulsory on anyone; and it is a well settled rule of law that a custom to have any force or recognition must be compulsory and not left to the option of men to use it or not. Lawson on Usages and Customs, 36; Somerby v. Tappan, Wright, 570.

Without a contractual relation a custom of trade can impose no duty of diligence in making abstracts or certificates of title. Kahl v. Love, 37 N. J. L., 5; Gordon v. Livingston, 12 Mo. App., 267; Day V. Reynolds, 23 Hun, 131; Russell v. Abstract Co., 87 Ia., 233; Commonwealth v. Harmer, 6 Phila., 90; Siewers v. Commonwealth, 87 Pa. St., 15; Zweigardt v. Birdseye, 57 Mo. App., 462; Mallory v. Ferguson, 50 Kans., 685; Savings Bank v. Ward, 100 U. S., 195; Buckley v. Gray, 110 Cal., 339; Mortgage & Trust Co. v. Hughes, 20 Fed. Rep., 39; Winterbottom v. Wright, 10 Mees. & W., 109; Collis v. Selden, L. R., 3 C. P., 495; Burdick v. Cheadle, 26 Ohio St., 393.

There are a few cases where abstracters have been held liable to parties other than those actually contracting with them, but in every instance the liability has been held to be created either because the contract was expressly made for the benefit of the third party, of which fact both parties to the contract had knowledge, or the third party has been found to be brought into privity of contract with the abstracter. Young v. Lohr, 118 Ia., 624;

Argument for Defendant in Error.

Brown v. Sims, 22 Ind. App., 317; Loan & Savings Co. v. Abstract Co., 31 Mont., 448; Abstract Co. v. Post, 55 Neb., 742; Building & Loan Assii. v. Title Co., 64 N. J. L., 27; Appleby v. State, 45 N. J. L., 161; Dickle v. Abstract Co., 89 Tenn., 431; Denton v. Title Co., 112 Tenn., 320; Houseman v. Building & Loan Assn., 81 Pa. St., 256; Building & Loan Assn. v. Houseman, 89 Pa. St., 261; Chase V. Heaney, 70 Ill., 268; Lattin v. Gillette, 95 Cal., 319.

And there are several cases which refuse to recognize the liability of the abstracter as extending even to third persons who are parties to the very transaction for which the abstract was prepared Mallory v. Ferguson, 50 Kans., 685; Gordon v. Livingston, 12 Mo. App., 267; Zweigardt v. Birdseye, 57 Mo. App., 462; Savings Bank v. Ward, 100 U. S., 195.

Where the abstracter has re-published the abstract to the plaintiff and has thus entered into a contractual relation with the plaintiff, the courts have held that the abstracter was liable. Sicwers v. Commonwealtlı, 87 Pa. St., 15; Building & Loan Assni, v. Bank, 118 Tenn., 678.

The text-writers uniformly lay down the rule that to fix liability for negligence upon an abstracter there must be privity of contract with

with the injured party. Martindale on Abstracts of Title, Section 185; Warvelle on Abstracts, 8; Niblack on Abstracters of Title, Art. 18.

And the text-writers on negligence lay down the same rule. 1 Shear. & Redf. on Negligence (5 ed.), Section 574; 5 Thompson on Negligence, Section 6705.

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