
    MERRILL VS. NORTON.
    • Where an attorney, acting as an agent to loan money, takes a judgment note ¡as security, and gives it to his principal, instead of entering the judgment; he .is not liable for a loss caused by the omission to enter the note.
    Error to the Common Pleas of Erie County. No. 159 January Term, 1885.
    This was an action on the case brought by Mrs. Louisa E. Merrill against L. S. Norton, Ex.< of C. B. Curtis, dec’d., for negligence. C. B. Curtis had been the attorney of Mrs. Merrill, .and had at different times negotiated loans of money, which she ■desired to invest. Prior to Sept. 1st, 1878, she told him that she Lad $2,000.00 to invest, “and if he got a good investment for it, ■she wanted him to loan it.” On Sept. 1st he came to her house and got her to loan the money to J. and L. M. Childs. A note was drawn by Curtis, and signed by the Messrs. Childs, and delivered to Mrs. Merrill, who after asking whether it was all right, and receiving an affirmative reply, put the note away. On November 8th, 1873, Curtis came to Mrs. Merrill, and showed her a letter from L. M. Childs to himself, telling him that the note had better be entered up, as the “financial sky is not very •clear.” He then asked for the note and said he would enter it at ■once, and it was a pity it had not been entered before. He entered it up immediately thereafter, hut a large number of judgments had in the mean time been entered up, and nothing was reálized finally upon this no! é. Mrs. Merrill then brought suit against Curtis for negligence in not entering the note immediately. Her deposition was taken, and was afterwards read at the trial, after ■¿he death of the defendant. At the trial the defendant moved for a non-suit, which, the Court granted, in , the. following opinion per ■ ' .•
    GrALBRAITH, P. J.
    As the question is presented, I am. obliged to decide this as so, matter of law, and I am of the opinion that there' is nothing; here for the jury. Taking all the evidence on part of plaintiff,, Mrs. Merrill, to be true, there is no proof of negligence on the* part of Col. Curtis. When the money was loaned, it appears^ that the borrowers were in excellent credit and Mrs. Merrill took the note and kept it, she made no request to have it entered in judgment and this failure to enter it in judgment in the, absence of a request on the part of the plaintiff that it should be so-entered and in the absence of any knowledge on the part of CoL. Curtis, that the parties were not in good credit, would not justify a verdict against his representative he^e. When the attorney with the consent and concurrence of a client, loaned money upon*, a bond or note merely,, which is retained by the lender without, any direction to the attorney to enter judgment, and there is a-failure of the debtor, such fact could not make a case of negligence against the attorney. Vast sums of money are. loaned daily on merely personal security and there is no implied ■ duty on the part of an attorney to secure a loan by him when he acts in good faith and when the borrower is in good credit; much more when the lender acquiesces in the omission to take real estate security, by retaining the note and keeping it herself without an effort to have it entered in judgmént. However much we may regret the loss to Mrs. Merrill, we are obliged to* decide, there is no case for the jury. .
    • • The Court subsequently refused to take off the compulsory non-suit, filing the following opinion per
    GrALBRAITH, P. J.
    The plaintiff’s declaration charges that- the deceased, C. B.. Curtis, was employed as her attorney and had charge of her business and in that capacity, loaned for her the sum of $2,200? to J. and L. M. Childs, taking therefore their judgment note,, and that from the neglect of said C. B. Curtis, to enter up the-, note m judgment, so as to make it a lien upon the real estate of the said borrowers, they having become insolvent and other liens being entered against them, the said debt was lost to the plaintiff.
    The case rested entirely upon the deposition of the plaintiff, taken in the life time of Mr. Curtis, and which was read in evidence to establish her claim.
    The defendant moved, for a compulsory non-suit which after agreement was ordered by the Court. The question presented, is, whether taking the testimony of plaintiff, she showed such a ease as should have been submitted to the jury.
    So far as disclosed by her depositions, there was nothing' said about real estate security, or about the borrowers being owners of real estate, Curtis told the plaintiff that they were perfectly réliable people to loan the money- to ; that they were good. There was nothing more said, the .plaintiff took the note and kept it in her possession and said nothing to Curtis about having it entered in judgment. Some time afterwards, on receiving a letter from one of the persons to whom the money was loaned, intimating that they were embarrassed and that- the note had best be entered up, the defendant went to the plaintiff and got the note and entered judgment upon it.
    - In her -testimony, the plaintiff testified that when the loan was made, she asked defendant, “if it was all- right,” and .he said it was, and that she put the note away, then says that defendant gave her no direction in regard to the note and that she did not read it. The plaintiff further swears, that at the time the • der fendant came to her to get the note for the purpose of Having it entered in judgment, “he said that he made a great mistake in not entering it up,” but the force of this alleged remark is greatly weakened by the different version given of it by the plaintiff in her cross-examination when she said that the language used by the defendant, was “it was a pity that he had not entered it up,” which is quite different from her first recollection, and in my view, much less indicative of any obligation on his part to have a judgment entered.
    For anything that appears in the testimony of the plaintiff, the loan was an ordinary lending on the personal obligation of the borrowers. Large sums are continually loaned in this way by banks and by individuals ; probably vastly more money is loaned without real estate security, than with it, and there is no implied duty on part of any attorney or agent negotiating such loan to have real estate security, in absence of direction or order or agreement to that effect. Certainly there could be no such implied or personal duty, when the defendant was not entrusted with the paper, which was retained by the lender. The note was not given to him to enter nor was anything said about its being entered until afterwards, when he came voluntarily for it on his own motion. It is not alleged that the parties to whom the loan was made were not entirely solvent at the time of the loan, nor is there even an intimation of any bad faith on part of the defendant, Col. Curtis.
    It would seem only necessary to state the facts as testified to by Mrs. Merrill, the plaintiff, to render it apparent that she has no legal claims against the defendant’s executor. The motion to take off the non-suit is refused and the rule discharged.
    Mrs. Merrill then took a writ of error, complaining of the action of the Court in refusing to take off’ the non-suit.
    
      John P. Vincent, Esq., for plaintiff in error,
    argued that negligence is the absence of care according to the circumstances; Easton vs. Neff, 14 W. N. C. 206; McKee vs. Bidwell, 74 Pa. 218; Phila. & Reading R. R. Co. vs. Boyer, 97 Pa. 101. An attornej-is liable for a loss caused by his neglect; Riddle vs. Poorman, 3 P. & W. 224; Newton vs. Caldwell, 10 Q. B. 82; Staunard vs. Ullithorne, 10 Bing. 491; Wilson vs. Tucker, Bow. & Ryl. 16 E. C. L. 420; Hunter vs. Caldwell, 10 Ad. & E. 70. If there he any evidence of negligence the case should go to a jury ; Murphy vs. Crossan, 98 Pa. 495; Smyth vs. Craig, 3 W. & S. 14; Bevau vs. Ins. Co., 9 W. & S. 187; Hughes vs. Westmoreland Coal Co., 14 W. N. C. 463.
    
      L. S. Norton and George A. Allen, Esqs., contra,
    
    argued that the doctrine, that where there was a scintilla of evidence, the ease must be left to the jury, is exploded in Pennsylvania. An attorney is not liable for a mistake in judgment if lie acts honestly ; Lynch vs. Commonwealth, 16 S. & R. 368.
   The Supreme Court affirmed the judgment of the Common Pleas on February 16th, 1885, in the folloming opinion:

Per Curiam.

There was no error in refusing to take off the judgment of non-suit. The case is barren of any evidence showing such negligence on the part of Mr. Curtis as to impose a legal liability on him. He did not assume to do the act, for the non-performance of which the attempt now is to make him responsible. In what he did do, he appears to have acted as a friend, instead of one on whom the legal liability of an attorney was imposed. Neither at the time of the loan? nor at any other time, did she pay him anything for his services ; nor was a word said indicating he was ever to be paid therefor.

Judgment affirmed.  