(dissenting).
I dissent for the reasons that the facts of the case are not fully set forth in the main opinion and the correct law is not applied to the facts as stated. I state them as I think they are:
The Bushnells brought an action against the defendants for damages and for removal of a house which encroached upon their land. D. Land Company had built the house and sold it to McCune who in turn sold it to the Sillitoes. Sandberg had surveyed the lot for D. Land Company before the house was built. D. Land Company cross-claimed against Sandberg claiming that the survey was negligently made.
The prayer of the cross-claim of D. Land Company is as follows:
Wherefore, in the event the Court determines that the Plaintiffs herein have sustained some damage or loss as alleged in their Complaint, the Defendant prays that the total relief granted to the Plaintiffs be granted against the Defendant, James C. Sandberg, dba Sandberg Engineers, or in the alternative, and in the event relief is granted against this Cross-Complainant, that this Cross-Complainant be awarded an indemnifying judgment against the Cross-Defendant herein for all of said relief, together with costs incurred herein and such other relief as the Court shall seem equitable. [Emphasis added.]
*1287By this counterclaim D. Land' asked the court to determine that if Bushnells were entitled to recover anything that it be solely against D. Land Company (which is really not a part of the counterclaim at all) and that if the court should hold D. Land Company for any part of the damages sustained by the Bushnells that it (D. Land Company) might be made whole by having an indemnifying judgment against Sandberg, the surveyor, for the amount of the judgment against itself. That is all D. Land Company prayed for — simply to be made whole.
During the course of the trial the plaintiffs and defendants settled their differences by entering into the following stipulation :
Come now VAN L. BUSHNELL and ALLISON B. BUSHNELL, his wife, by and through their attorney, CHRISTIAN RONNOW of RONNOW AND BISHOP; Defendants S. DELROY SILLITOE and DONNA SILLITOE, his wife, by and through their attorney, JOSEPH E. JACKSON of CLINE, JACKSON, and MAYER; Defendants D. W. OGDEN and D LAND TITLE COMPANY, a Utah corporation, by and through their attorney TEX OLSEN of OLSEN AND CHAMBERLAIN; and Defendant JAMES C. SANDBERG, dba SANDBERG ENGINEERS, by and through his attorney MICHAEL W. PARK, and stipulate and agree as follows:
I
That in consideration of $6,000.00, cash to be paid to said Plaintiffs upon the entry of the Order of Judgment herein, which $6,000.00 shall be paid to said Plaintiff by the sum of $3,000.00 paid by Defendants S. DELROY SILLITOE and DONNA SILLITOE, his wife, and $3,000.00 paid by Defendant D LAND TITLE COMPANY, a Utah corporation, all and singular and claims of Plaintiffs against the Defendants shall be compromised and paid.
II
Plaintiffs hereby stipulate and agree that they will execute and deliver unto Defendant S. DELROY SILLITOE and DONNA SILLITOE, his wife, as Grantees, a good and sufficient Warranty Deed conveying to said Grantees a parcel of real property more particularly described in said Warranty Deed, a copy of which said Deed is attached hereto, which is incorporated herein by this reference, and said Deed will be delivered to said Grantees concurrently with the receipt by Plaintiffs of the $6,000.00 cash aforesaid.
III
The stipulation for compromise and release hereinabove set forth, is a release by Plaintiffs of Defendants and' is further a release by Defendants of any claim against Plaintiffs, but the determination of the liabilities as between the Defendants themselves, as to any contribution or claim set forth in Cross Complaints or any other pleadings herein are specifically reserved by said Defendants and each of them. [Emphasis added.]
The only pleadings in the file between the defendants is the cross-claim of D. Land Company against Sandberg and the answer thereto and that is the only matter which was tried. There is no evidence whatsoever that D. Land Company agreed to pay the Sillitoes any money. The Silli-toes never at any time requested any relief from Sandberg. Apparently they were satisfied with the settlement for they got 1S.8 feet of extra land from the Bushnells.. Even if they had claimed against the surveyor they could not recover the full $3,000 which they had paid for the reason that they got a deed to land to which they were not entitled save by the money which they had paid. If by hook or crook they could hold the surveyor, all they could get would be the $3,000 paid less the value of the land conveyed to them.
If the Sillitoes could not recover from the surveyor, how could D. Land Company *1288recover for them? If the XYZ Corporation owes A some money and also owes B some money, could B, by action recover for the amount due A? The answer is too obvious to require any discussion: No, he could not.
I do not think the Sillitoes had any claim against the surveyor at all. Their relief, if any they had, was against D. Land Company on a breach of warranty.
The main opinion, ignoring the fact that the Sillitoes made no claim for indemnification from the surveyor, cites the case of Rozny v. Marnul1 as authority for the proposition that the surveyor would have been liable to the Bushnells. That case is no authority for the holding claimed for it. In that case the surveyor surveyed lots for a subdivider and knew that the lots would be sold and could foresee that the purchaser would rely on the survey as made. He, in fact, gave an “absolute guarantee for accuracy” which he included in his plat.
In holding the surveyor liable, the Illinois court said:
As is apparent from the foregoing discussion, the factors we consider relevant to our holding are:
(1) The express, unrestricted and wholly voluntary “absolute guarantee for accuracy” appearing on the face of the inaccurate plat;
(2) Defendant’s knowledge that this plat would be used and relied' on by others than the person ordering it, including plaintiffs;
(3) The fact that potential liability in this case is restricted to a comparatively small group, and that, ordinarily, only one member of the group will suffer loss;
(4) The absence of proof that copies of the corrected plat were delivered to anyone;
(5) The undesirability of requiring an innocent reliant party to carry the burden of a surveyor’s professional mistakes;
(6) The recovery here by a reliant user whose ultimate use was foreseeable will promote cautionary techniques among surveyors.
Based upon a consideration of these factors as presented by this record1 we hold plaintiffs may recover.
Furthermore that case was based upon the holding in a couple of cases2 wherein an auditor was held responsible to lenders and purchasers for loss because of fraudulent and negligent certified audits. Those cases involved the provisions of the Securities and Exchange Act of 1933 and 1934.3
Regardless of the liability or lack thereof of the surveyor to the second' purchaser from D. Land Company (the employer of the surveyor) the money due, if any, to the Sillitoes can be recovered by none except the Sillitoes or their assigns. No assignment was ever made and D. Land Company is not entitled to a judgment for $6,000 as awarded by the trial court and affirmed by the prevailing opinion herein. D. Land Company is entitled to be made whole under the prayer of its cross-complaint and $3,000 will satisfy both the prayer thereof and the ends of justice.
I would remand the case with directions to delete $3,000 from the judgment and would otherwise affirm it.
I would also award costs to Sandberg.
CROCKETT, J., concurs in the views expressed in the dissenting opinion of Mr. Justice ELLETT.. 43 Ill.2d 54, 250 N.E.2d 656.
. Rusch Factors Inc. v. Levin, D.C.R.I., 284 F.Supp. 85 (1968); Fischer v. Kletz, D.C.N.Y., 266 F.Supp. 180 (1967).
.15 U.S.C.A., Sections 711(2), 78j(b) and 78m (a) (2).