(Superior court of Cincinnati.)

(Special term.)

#### NATHANIEL WRIGHT v. THE UNION CENTRAL LIFE INSURANCE COMPANY.

Where the evidence discloses that the making of an abstract of title to real estate has been confided in an attorne” at law, the court will assume that his legal knowledge and power of judgment and discrimination was desired in order that what does and what does not affecc the title investigated might be correctly determined ; and where the property is valuable and the title is complicated, involving risk and responsibility on the part of the abstracter, the abstract will not be regarded as‘ a mere mechanical commodity when the fee for its production is to be fixed, but the professional learning of the abstracter and the confidence reposed in him by his employer will be taken into the account.

*233Dempsey, J.

This is an action to recover the sum of $400 for alleged professional services rendered by plaintiff, an attorney at law, in the examination and abstracting of the title to very valuable real estate under an employment by the defendant. The only defense is as to the amount of the recovery, the defendant’s contention being that the services rendered were worth only $100, for which amount it offers to confess j udgment.

The claim of the defendant is that the abstracting of titles has now become a formalized business, and this to such an extent that it has been taken out of the range of purely professional activity, and no more forms a part of the lawyer’s peculiar duties. In other words, it is the defendant’s contention that an abstract of title is now nothing more than a merchantable commodity, selling in the market for the prices usually paid for such commodities to those who make a business of searching and abstracting the public records; and that the result of one’s labors, when condensed and produced in the form of an abstract of title, is worth no more than an exactly similar abstract would be, no matter how much might be the difference in property value; how much the difference in time and labor involved in producing the condensed result; how intricate the questions involved in the one as compared to the other, and things of like nature. It is the result that is paid for, and the amount to be paid is to be ascertained by certain fixed prices, dependent upon the number of items or instruments that are finally decided upon as proper to appear in the abstract.

On the other hand, it is contended that the business of title abstracting is a particular branch of the profession of law; that it requires for a proper conduct of such branch of law a comprehensive legal knowledge, especially of all law relating to real estate; that it requires care, skill and a power of wise discrimination in ascertaining the existence, bearing and effect of the various instruments of record that may or may not touch upon the title of a particular piece of real estate; and that competency to examine a title and mfake an abstract thereof, even from public records, necessarily depends upon the legal learning of the abstracter, the experience he has had in making abstracts, the care and skill exercised in searching the records, and the power of discreet j udgment and discrimination exercised by him in applying any given record to the title under investigation; and, as a consequence, that the compensation therefor is not to be measured by any arbitrary fixed rate established by professional abstracters of records, bur is rather to be determined by the rate usually paid for such services to persons of the competence as above defined taken, in connection with the value of the property and the risk assumed by the abstracter.

Evidence was produced at the trial as to the value of such services viewed from the two positions assumed by the parties; but the true question in this case, viz., the present status of an abstracter, whether he is to be considered as a man charged with the necessary legal learnng and assuming large risks and responsibilities, or as a mere mechanical agent producing from transcription of the records a condensed result called an abstract, did not receive m,uch light from the evidence.

I certainly can not decide this question as a matter of law, so that it must necessarily depend upon the evidence. And the evidence in the case has not satisfied me that as yet the abstracter has changed his former relations and disappeared from the profession of the law, and become instead a member of a guild whose business it is to furnish abstracts as mercantile commodities, and sell them as such; or that his compensation should be measured on such a basis.

The question has given me a great deal of mental worry in my anxiety to solve it rightly and do, as near as I can, exact justice between the parties to this case. But I am unable to see how an abstract of title which is the result, as said before, of the time, labor and legal knowledge of one skilled in such affairs, can be likened to an article of merchandise bought and sold in the market. There is something more in an abstract than the paper of which it is composed and the words written or printed thereon, and that something more is the confidence reposed by the employer in the maker of the abstract, and the reliance placed upon the result of his knowledge, labor and skill whereby the employer is willing to part with his money on the faith of them. This confidence and reliance is something you can’t buy in the^ open market; it has its origin in other ways, in various ways obvious to all. You can put a fixed, definite value or price upon the time and labor employed in producing an abstract, and upon the corporeal materials of which the abstract is composed, and you may make that *price or*value uniform. But over and beyond these things lies what I call this power of discrimination, in order to correctly and truly determine what does not affect the title investigated, and which power necessarily includes as precedent to its exercise a thorough knowledge of the law bearing upon real estate, and that is an element entering into the production of every abstract of title upon which you cannot put a fixed price which shall be uniform for all. It is this factor which begets for each individual abstracter the particular degree of confidence reposed in him by his particular employer, and which, in turn, imposes upon him the correlative risks and responsibilities to be implied from a failure to have or exercise the legal knowledge necessary to a proper and correct judgment of the instruments or items that may affect the particular title.

In the view that I take of it, there can never be a uniform rule or scale of prices for an abstract of title, if the element of legal knowledge and the application of that legal knowledge are to be considered as entering at all into a consideration of the value of the services. And I cannot see how they can be ignored, if an ab-tract of title is to be deemed as representative of anything. Entertaining this view, it is my judgment that the plaintiff must preva.il on the *234evidence offered by him, and the judgment will be for him in the amount prayed for.

Sidney G Strieker for plaintiff; Robert Ramsey, contra.