Morrill v. Title Guar. & Sur. Co.

• Decision Date: 20 March 1917
• Docket Number: 13513.
• Court: Washington Supreme Court
• Parties: MORRILL v. TITLE GUARANTY & SURETY CO. et al.

163 P. 733

94 Wash. 258

MORRILL v. TITLE GUARANTY & SURETY CO. et al.

No. 13513.

Supreme Court of Washington

March 20, 1917

Department 1. Appeal from Superior Court, Clarke County; Bert Linn Judge.

On petition for rehearing. Rehearing denied, and former opinion sustained.

For former opinion, see 162 P. 360.

Henry Crass, of Vancouver, for appellants.

Jas. B Murphy and Robert C. Saunders, both of Seattle, for respondents.

PER CURIAM.

A petition for rehearing has been filed in this case, in which it is charged that the court overlooked its former decisions with respect to the necessity of counting on a statute if recovery is sought only under the statute and not upon other grounds; that the rule announced in this case is utterly contrary to the rule of decision announced in the several opinions of this court. Flessher v. Carstens Packing Co., 81 Wash. 241, 142 P. 694; Id., 84 Wash. 697, 152 P 17; Hoffman v. Watkins, 78 Wash. 118, 138 P. 664; Acres v. Frederick & Nelson, 79 Wash. 402, 140 P 370; Kanton v. Kelly, 65 Wash. 614, 118 P. 890, 121 P. 833. It is contended further that this court has uniformly held that the parties cannot change the theory of the action on appeal, and that, similiter, this court erred in assuming the power to change the theory of the action for the parties.

We are not unmindful of any of the rules suggested by counsel, but the opinion in no way trenches upon them. The intervening appellants alleged that the defendant respondent Title Guaranty & Surety Company held a mortgage, in form a deed upon their property; that the mortgage had been satisfied; that it refused upon demand to enter a formal satisfaction. The surety company joined issue, setting up: That appellants had not shown that the conditions of the trust deed had been performed until the trial of the action; that the surety company had a bona fide claim against the trust deed; that it was not bound to enter a satisfaction piece so long as the claim was asserted in good faith; that no damages are recoverable at common law for failure to release a mortgage or lease; and that the statute provides the only penalty recoverable for failure to release or satisfy a mortgage. Upon the record, we said that, although it was not necessary to a decision, the proof was ample to sustain a finding that the conditions of the trust deed had been performed, and that the mortgage had been paid. We also held against the surety company upon the legal issue; that is to say, that it could not refuse to satisfy the mortgage under the plea of good faith.

With the law and the fact decided against the surety company, the only question remaining was the measure of damage. Appellants asserted that they had been damaged in a very considerable sum. We held them to the penalty provided by statute. Appellants never had a choice of remedies. Their cause of action is the same now as it would have been had the statute fixing the penalty for a failure or refusal to satisfy a mortgage never been passed. And, while it might be said technically that there was no cause of action and no damages recoverable at common law for the failure to satisfy a mortgage, there was such action in equity; or, to state it in another way, there was and is an action independent of all statutes. Section 8799 does not give a right of action. It assumes that a right of action existed at the time. The statute is no more and no less than a substitution of a penalty in the way of damages for the general relief allowed in equity, with interest and costs.

We shall not take time to discuss all of the cases cited. We concede them to be well sustained in principle. But they are so clearly inapplicable to a case of this kind that reference to but one or two of them will be sufficient to illustrate the strength of our position and the soundness of the opinion. In Flessher v. Carstens Packing Co., supra, the plaintiff had a choice of remedies. He had an action at common law, and an action under the statute. He brought his action as a common-law...