Ebbert v. First Nat. Bank

• Citation: 279 P. 534,131 Or. 57
• Parties: EBBERT v. FIRST NAT. BANK OF CONDON.
• Decision Date: 23 July 1929
• Court: Supreme Court of Oregon

279 P. 534

131 Or. 57

EBBERT v. FIRST NAT. BANK OF CONDON.

Supreme Court of Oregon

July 23, 1929

Department 1.

Appeal from Circuit Court, Gilliam County; C. H. McColloch, Judge.

Action by W. I. Ebbert against the First National Bank of Condon. Judgment for defendant, and plaintiff appeals. Reversed and remanded, with instructions.

Howard P. Arnest, of Portland, for appellant.

Jay Bowerman, of Portland (Bowerman & Kavanaugh, of Portland, and Chas. H. Horner, of Condon, on the brief), for respondent.

ROSSMAN J.

The plaintiff, a mortgagor, seeks, in this action to recover damages from the defendant, mortgagee, for its alleged failure to enter satisfaction upon the public records of two chattel mortgages which he alleges he paid. March 16, 1921 when the plaintiff was the owner of a wheat ranch in Gilliam county, and of the personal property thereon, he executed and delivered to the defendant his promissory note for the sum of $4,800; June 2, 1921, he prepared and delivered to the defendant his note in the sum of $4,906.30; September 13 1921, a similar transaction took place in regard to a note for $665; and on September 17, 1921, he signed and delivered to the defendant another for $5,161.89. Each note was secured by a chattel mortgage and all of the latter were properly recorded in the chattel mortgage records. The $665 obligation was discharged by payment in money. The second note was a renewal of the first, the difference in amount being accumulated interest; the fourth was similarly a renewal of the second; liability upon it was discharged, not by payment, but through foreclosure of the accompanying chattel mortgage. Satisfaction of the mortgages was not entered upon the public records until February 9, 1924.

The plaintiff contends that when he executed the fourth note he paid the sum of 50 cents for a marginal release of the first and third mortgages, and requested defendant to enter such a satisfaction upon the chattel mortgage records. It is clear that he made no such request in regard to the second note because this obligation had escaped from his memory until his attention was called to it upon the trial. The plaintiff testified that he also deposited with the county clerk of Gilliam county the sum of 50 cents and at that time again requested of the defendant a satisfaction upon the public records. His complaint avers that the latter failed to enter such releases until February 9, 1924, because of its "malicious and wrongful design" to ruin his credit, drive him from the community, prevent him from securing loans and credits otherwise with which to discharge the incumbrances upon his property, and obtain his property for itself. His pleading alleges that as the result of the defendant's failure to satisfy the mortgage records "the plaintiff was unable to secure loans and credits with which to pay off and secure the discharge, release and satisfaction of outstanding indebtedness secured by mortgages upon real property and personal property then owned by the defendant, or those controlled and directed by the defendant and that said real and personal property was thereby lost to plaintiff through foreclosure proceedings--all to the plaintiff's actual loss, harm and damage in the sum of Thirty-Seven Thousand Eight Hundred Eight and 08/100ths ($37,808.08) Dollars." The verdict and judgment in the circuit court were in favor of the defendant. The plaintiff appealed and presents thirteen assignments of error.

The plaintiff supplied evidence that when he executed the fourth note, secured it by a chattel mortgage, and delivered both to the defendant, the latter accepted them, not as additional security for the existing indebtedness, but in lieu of the first obligation, and promised to satisfy the chattel mortgage records. He testified that when new notes and mortgages were executed the old ones were returned. This evidence, if believed, would have warranted a finding that the first note was thereby paid. Jones on Mortgages (7th Ed.) § 926, and 21 R. C. L., Payment, § 72. The third note apparently was paid simultaneously with actual money. The plaintiff testified that at that time he requested the defendant to enter a marginal release upon the mortgage records of the first and third mortgages, and paid the defendant 50 cents to defray the county clerk's charges for this service. Having supplied the above testimony, he contends that his case was brought within the provisions of section 9891, Or. L. This section of our laws requires a mortgagee, after full performance of the conditions of the mortgage and tender "of his reasonable charges," to discharge the mortgage, or execute and deliver a certificate of discharge to the mortgagor within ten days after request; it also provides that should he fail to do so he should become liable to the mortgagor "in the sum of $100 damages, and also for all actual damages occasioned by such neglect. * * *" This section originally was applicable only to real estate mortgages, but the plaintiff contends that the enactment of 1901 Session Laws, p. 125, § 5, which is codified as section 10181, Or. L., extended its effect to chattel mortgages. The latter section expressly mentions section 9891 and declares that it shall become applicable to chattel mortgages; the defendant insists that when the Legislature endeavored to apply this section of our laws in regard to real estate mortgages, to chattel mortgages, and failed to set forth the text of section 9891 in the new enactment, it violated section 22, art. 4, of the State Constitution, which provides that no act shall be revised or amended by mere reference to its title. Before passing upon this objection, we observe that section 3653, Or. L., which is applicable to counties with a population of less than 50,000 inhabitants, prescribes a charge of 25 cents for entering a satisfaction of a chattel mortgage, and that section 3639, Or. L., applicable to other counties, exacts a similar charge for a like service. The first of these provisions became a part of our laws in 1905, and the second in 1903, while section 10181 was enacted in 1901. Prior to the enactment of section 10181 the law of this state, both legislative and common, recognized chattel mortgages; as early as the year 1866 the Legislative Assembly had provided methods for the foreclosure of such mortgages. The statutory provision in regard to real estate mortgages was extensive. Prior to the enactment of section 10181 there was no statutory law dealing with the precise subject-matters affected by its various provisions. Under these circumstances we do not believe that the effect of the attacked section was to revise or amend a previous law, but that it was a supplemental act which did not modify or alter an existing act. The following two cases are illustrative: Brown v. City of Silverton, 97 Or. 441, 190 P. 971; The Borrowdale (D. C.) 39 F. 376. The general rule is stated and applied in 1 Cooley's Const. Limitations (8th Ed.) p. 315. We conclude, therefore, that the enactment of section 10181 was not in conflict with the suggested constitutional provision. It follows from the foregoing that if the plaintiff (1) satisfied the conditions of any of his mortgages, (2) tendered to the mortgagee the sum of 25 cents for a marginal release, and (3) requested such a satisfaction, he became entitled to a valid cause of action against the defendant, by virtue of section 9891, Or. L., if within the ten-day period the defendant failed to execute the necessary marginal release, and further that all rulings of the circuit court in conflict with these conclusions were erroneous.

September 27, 1921, the plaintiff signed the last of the four mortgages, and as we have previously observed, he relies upon the execution and delivery of that mortgage as effecting payment of the first note and mortgage. At approximately the same time he paid the third note in money. He did not institute this action until October 23, 1926. Since more than three years separates these two events, the defendant contends that the recovery of the $100 item, at least, was barred by the section of our statute of limitations which pertains to penalties and forfeitures, and thus seeks to uphold the lower court's instruction upon that item. It has been held that when a statute imposes a duty, specifies a time within which it must be performed, and gives to a prescribed party a remedy, if the act is not performed, the period of limitations begins to run immediately upon the failure to discharge the required duty. 2 Wood on Limitations (4th Ed.) § 187; 37 C.J., Limitation of Actions, § 264, and Barnes v. Pitts Agricultural Works, 6 Idaho, 259, 55 P. 237. Hence, we conclude that at the close of the tenth day following September 27, 1921, the plaintiff's cause of action had accrued and the limitation period began to run. Subdivision 2 of section 7 Or. L., provided a three-year limitation period for "an action upon a statute for penalty or forfeiture, where the action is given to the party aggrieved. * * *" The defendant contends that this action is of the type thus defined, while the plaintiff argues that subdivision 2 of section 6, Or. L., which specifies a six-year limitation period for "an action upon a liability created by statute, other than a penalty or forfeiture," is the provision which governs this action. Section 9891 provides for the recovery of two sums: (a) $100 damages; this is recoverable even though the mortgagor has sustained no damage; it is smart money which is intended to quicken the mortgagee in the prompt performance of his duty, Malarkey v. O'Leary, 34 Or. 493, 56 P. 521, (2) "all actual damages occasioned by such neglect;" the measurement of the latter is determined by the extent of the...