DUNDEE Momoacn a rnusr ruvasrmmnr oo. v. nucnrxs. 41
the title and condition of real property offered as security for a loan
by the latter. Prima, facie there is no element of a guaranty involved ‘
in sucl1 employment. The defendant only undertook to bring toithe
discharge of his duty reasonable skill and diligence. He did notwar-
rant or guaranty the correctness of his work any more than a physi— V
cian or a mechanic does.
It is admitted that if the Oregon & Washington Trust Investment
Company had sustained a loss by the negligence or want of skill on ‘
the part of the defendant in this matter, the right to recover dam-
ages for the 'same might be assigned to the plaintiff, and it could
maintain an action thereon. But taking the facts of the case accord-
ing to their legal import, and construing contradictory allegations
according to the law of the case, the plaintiff does not sue as the
assignee of a cause of action accruing to the Oregon & Washington
Trust Investment Company during its existence and ownership of the
Shaw note and mortgage. The only thing assigned by the latter was
this note and mortgage, and, nothing appearing to the contrary, pre--
sumably the consideration, therefore, was equal to its par value. It
does not appear, then, that the assignor ever lost anything by reason
of the incorrectness of the defendant’s certificate. Nor could the in-
sufficiency of the surety be absolutely, if at all, determined until the
maturity of the note in 1882, while the assignment to the plaintiff
was made in 1879. A
The only question, then, really in this case is whether the defend- V
ant is liable, on this certificate, to any one but his employer, the
Oregon & Washington Trust Investment Company. The defendant ·
maintains that he is not, while the plaintiff contends he is; not on
the ground of privity of contract between them, or that it was aware
of the existence of the certincate, or ever acted on it, or was mis-
led by it, but on the ground that the certificate was a necessary pre-
liminary to the contract of loaning, and therefore an integral part
of that contract, operating, of course, as an assurance or security to
the person about to make the loan, but as much a part of the trans-
action as the mortgage itself. This question has been decided by
the supreme court in Savings Bank v. Ward, 100 U. S. 195. The
case was this: A., an attorney employed by B. to examine and
report on the title of the latter to a certain lot of ground, certified
that it was "good," upon which certificate B. procured a loanfrom
` C., and gave a mortgage on the property as security. It turned
out that B. had parted with the title to the property prior to the date
of the certificate——a fact that, in the exercise of reasonable care,
might have been learned from the records. The security having
proved worthless, and B. being insolvent, C. lost his money, and
brought suit against A. for damages. The court held, in the language
of the syllabus, "that there being neither fraud, collusion, nor false-
hood by A., nor privity of contract between him and G., he is not
liable to the latter for any loss sustained by reason of the certificate."