Though ND Cent Code § 43-01-11 and its predecessors have, since 1889, expanded an abstracter's liability to "any person", it is nonetheless clear that in North Dakota, the cause of action remains in contract not in tort and that this is not a fraud cause of action with the element of intent constructively supplied. Commercial Bank of Mott v Adams County Abstract Co, 73 N.D. 645; 18 N.W.2d 15 (1945) (third-party purchaser cause of action against abstracter). OHIO
In many of the cases it appears that the court considered the double motions as equivalent to an agreement to submit the case to the court. Commercial Bank of Mott v. Adams County Abstract Co., 73 N.D. 645, 18 N.W.2d 15. These cases were decided on the statutory law then in force relating to motions for directed verdict, judgment notwithstanding the verdict or for new trial.
The transaction between Rachettos and plaintiffs took place over five years ago. No refund had been made and there is no evidence in either the case of DuPratt v. the Stangls and Turners or this case that the Rachettos had demanded or even asked for a refund. An action against an abstracter for damages resulting from an error in an abstract is based upon contract and not upon tort. Commercial Bank of Mott v. Adams County Abstract Co., 73 N.D. 645, 18 N.W.2d 15. The burden of proof was upon the plaintiffs to prove that they had been damaged the $2,250. This, we believe they completely failed to do. This item of damage is therefore disallowed.
See Russell Co. v. Polk County Abstract Co., 54 N.W. 212 (Ia.); Savings Bank v. Ward, 100 U.S. 195; Bridgeport Airport v. Title Guaranty Trust Co., 150 A. 509 (Conn.); Commercial Bank of Mott v. Adams County Abstract Co., 18 N.W.2d 15 (N.D.); Trisdale, Inc. v. Shasta County Title Co., 304 P.2d 832 (Cal.). See also 1 Fitch, Abstracts Titles to Real Property, § 10; Note 28 A.L.R. 2d 891; 1 Am. Jur., Abstracts of Title, § 27; 1 C.J.S., Abstracts of Title, § 11. Since the liability is contractual, it may be limited in its scope by apt and clear language brought home to the employer.
Murray Murray, for appellant. When an error appears on the face of the judgment roll, the Supreme Court will not overlook it but will act on it. Commercial Bank v. Adams County Abstract Co. 73 N.W. 645, 18 N.W.2d 15; State ex rel. Harding v. Lane, 60 N.D. 703, 236 N.W. 353; Schulenberg v. Long, 57 N.D. 262, 221 N.W. 69; Wilson v. Kryger, 29 N.D. 28, 149 N.W. 721; Beauchamp v. Insurance Co. 38 N.D. 499, 165 N.W. 550; Willoughby v. Smith, 26 N.D. 209, 144 N.W. 79; Kennedy v. Bank, 22 N.D. 69, 132 NW 657; Schmidt v. Beisicker, 19 N.D. 35, 120 N.W. 1096; Kelly v. Pierce, 16 N.D. 234, 112 N.W. 995. The only persons who should be made parties to an appeal from a decision of the county court to the district court are the persons interested in the estate.