Lattin v. Gillette
Before: Harrison
Synopsis
Statute oe Limitations—Two-yeabs Clause—Torts—Construction or Code. — Section 339 of the Code of Civil Procedure, providing that an action upon a contract, obligation, or liability, not founded upon an instrument in writing, must be brought within two years after the cause of action shall have accrued, is applicable to all actions at law not specifically mentioned in other portions of the statute, and includes liabilities arising in consequence of torts committed, as well as those arising from contracts, express or implied, not founded upon an instrument in writing.
Id. —Running op Statute — Breach op Contract — Disregard op Duty. — The statute of limitations begins to run against an action for misconduct or negligence from the date when the misconduct or negligence was completed, and it is immaterial whether the negligence out of which the cause of action arises is the breach of an implied contract, or the affirmative disregard of some positive duty.
Id. —Right op Action — Future Damages — Knowledge op Negligence. — The right to maintain an action for negligence is distinguished from the measure of damages, and although the entire damage resulting from such negligence may not have been known until the right to a recovery is barred, yet the time within which an action may be brought is not thereby prolonged.
Id. —Liability of Searcher op Records — Limitation op Action for Negligence— Loss OP Title within Two Tears. — One who holds himself out as an examiner of titles is bound to exercise skill and care in making the examination, and is liable in damages for a failure to exercise such skill and care; but an action against a searcher of records, for damages resulting from his negligence in the examination and report upon the condition of the title to realty, must be commenced within two years after the giving of the report, or it is barred by the statute of limitations, although the plaintiff was deprived of a portion of the land by means of a suit brought within two years before the commencement of the action for damages.
Id.—Four-years Clause op Limitation — Certificate op Title — Construction op Code. — Section 337 of the Code of Civil Procedure, prescribing the limitation of four years for an action upon a contract, obligation, or liability, founded upon an instrument in writing, refers to contracts, obligations, or liabilities arising from instruments of writing executed by the parties who are sought to be charged, in favor of those who seek to enforce the contracts, obligations, or liabilities, and does not apply to a certificate of title given by a searcher of records employed to examine and make a written report of the condition of the title, where damages are claimed for negligence of the searcher in giving an incorrect certificate.
Harrison, J. In June, 1886, the plaintiff employed the defendants, who were engaged at Los Angeles in the business of searching public records and examining titles to real estate, to examine the title of one Birnbaum to a tract of land in Los Angeles County, for which he had made a contract of purchase, and ascertain if his title was good, and paid them one thousand dollars for their services. The defendants, under said employment therein, made a report to the plaintiff, and gave him a certificate in writing, on the twelfth day of June, 1886, that the title to the land was vested in Birnbaum, free of all encumbrances. Thereupon the plaintiff purchased and paid for the land. Afterwards, and within two years prior to the commencement of this action, a suit was brought in the superior court of Los Angeles County in reference to the title to said land, which the plaintiff was subjected to the cost and expense of defending, and in which a judgment was rendered, to the effect that at the date of said certificate an undivided one half of said land was vested in the heirs of one Smith; and the plaintiff herein was thereupon deprived of the said half of the land. In May, 1890, he commenced this action against the defendants for damages resulting from their negligence in the examination and report upon the condition of the title. Defendants demurred to the complaint, upon the ground, among others, that the suit was not brought until more than two years after the cause of action had accrued, and was therefore barred by the statute of limitations. The court sustained the demurrer to the complaint, and judgment was rendered against the plaintiff, from which he has appealed.
Section 339 of the Code of Civil Procedure provides that an action upon a "contract, obligation, or liability,” not founded upon an instrument in writing, must be [319]brought within two years after the cause of action shall have accrued. This provision was declared in Pillar v. S. P. R. R. Co., 52 Cal. 44, to be “ applicable to all actions at law not specifically mentioned in other portions of the statute.” The word “ liability ” is the most comprehensive of the several terms used in this section, and includes both of the others, inasmuch as it is the condition in which an individual is placed after a breach of his contract, or a violation of any obligation resting upon him. It is defined by Bouvier to be “ responsibility; the state of one who is bound in law and justice to do something which may be enforced by action. This liability may arise from contracts, either express or implied, or in consequence of torts committed”; and this definition was approved in Wood v. Currey, 57 Cal. 209.
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