On appeal from a judgment of the Supreme Court, whose per curiam opinion is printed in 11 N.J. Mis. R. 866.
For the appellant, Edward Stover.
For the respondent, Charles De F. Besore.
The opinion of the court was delivered by
HEHER, J. Plaintiff sued, in the Bayonne District Court, to recover damages said to have been sustained by reason of the carelessness and negligence of defendant, a duly licensed real estate broker, in the preparation of a chattel mortgage made by one Levy to plaintiff, covering specified equipment and "stock" contained in the former's drug store, and given to secure a loan, in the sum of $2,000, which plaintiff claims to have made to Levy. In proceedings instituted in the Court of Chancery by Levy's landlord, who claimed a lien upon the chattels by virtue of a distraint for rent, the Chancellor determined that the statutory requirement of an affidavit stating the true consideration had not been met, and adjudged and decreed the mortgage to be null and void "with respect to the goods and chattels therein described, in so far as the complainant * * * is concerned * * *." Levy was adjudicated a bankrupt, and the debt arising from plaintiff's asserted loan to him was discharged.
A jury for the trial of the issue was impaneled. Each party moved, when the evidence was presented, for a direction
of a verdict in his behalf. The trial judge, misconceiving the effect of these motions, withdrew the case from the jury, and determined the issues himself. He awarded a judgment to plaintiff for $500. Defendant noted an exception to the action thus taken.
In taking the case from the jury the trial judge fell into error. It is not the rule in this state that when cross-motions for a direction of a verdict are made, all questions of fact are to be determined by the court, and not submitted to the jury. The mere making of the cross-motions does not amount to a consent that the case shall be taken from the jury. Second National Bank of Hoboken v. Smith, 91 N.J.L. 531; Hayes v. Kluge, 86 Id. 657, 661. The Supreme Court so held, but concluded that the proofs established that the chattel mortgage was defectively drawn; that defendant was wholly devoid of the qualifications and skill to draw it; that defendant's negligence was established; that "if the judge had submitted the case to the jury he would have been obliged to instruct it to find in his (plaintiff's) favor;" and that defendant, therefore, suffered no legal injury by the action complained of
We are unable to agree with this view of the case. The gravamen of the complaint was negligence in the preparation of the mortgage, predicated upon defendant's alleged representation, express or implied, that he was "authorized and competent to draw chattel mortgages," and possessed "that degree of knowledge and skill necessary for the proper drawing of such instruments." The case which plaintiff sought to establish, by the evidence offered, was that defendant did not have the requisite knowledge and skill, and it was upon the theory that this conclusively appeared, and that a verdict should have been directed for plaintiff, that the Supreme Court affirmed the judgment.
Defendant's duty to plaintiff is measured by his undertaking. A lawyer undertakes, in the practice of his profession of the law, that he is possessed of that reasonable knowledge and skill ordinarily possessed by other members of his profession. He contracts to use the reasonable knowledge
and skill in the transaction of business which lawyers of ordinary ability and skill possess and exercise. On the one hand, he is not to be held accountable for the consequences of every act which may be held to be an error by a court. On the other hand, he is not immune from the responsibility, if he fails to employ in the work he undertakes that reasonable knowledge and skill exercised by lawyers of ordinary ability and skill. McCullough v. Sullivan, 102 N.J.L. 381; 132 A. 102. This responsibility of the attorney, although ordinarily enforced by an action on the case for negligence in the discharge of his professional duties, in reality rests upon his employment by the client, and is contractual in its nature. Fenaille v. Coudert, 44 Id. 286; Robertson v. Chapman, 152 U.S. 673; 14 Sup. Ct. 741; 38 L. Ed. 592; Watson v. Calvert Building. &c., Assn., 91 Md. 25; 45 A. 879. One who falsely represents himself as an attorney is accountable to his client with the same strictness as though he were an attorney. Miller v. Whelan, 158 Ill. 544; 42 N.E. Rep. 59; Foulks v. Falls, 91 Ind. 315; 6 C.J. 696. But that was not the case here. Plaintiff concededly knew that defendant was not a member of the bar. ...