Sackett v. Rose, 4770.
| Court | Supreme Court of Oklahoma |
| Citation | 154 P. 1177,55 Okla. 398,1916 OK 2 |
| Docket Number | 4770. |
| Parties | SACKETT ET AL. v. ROSE. |
| Decision Date | 04 January 1916 |
Rehearing Denied. Feb. 15, 1916.
Syllabus by the Court.
Under section 1, Wilson's Rev. Statutes 1903, an abstractor of title is liable on his bond to pay all damages that may accrue to any person by reason of any incompleteness imperfection, or error in any abstract furnished by him and relied on by such person to his injury, and such liability is not confined to the person for whom he makes or furnishes an abstract.
In the construction of statutes, harmony, not confusion, is to be sought. Conflicts between different provisions of the statute are not to be held to exist, if harmony, by any reasonable construction of them, can be discovered. The true rule has often been said to be that where two acts or parts of acts are reasonably susceptible of a construction that will give effect to both and to the words of each, without violence to either, it should be adopted in preference to one which though reasonable, leads to the conclusion that there is a conflict. There is no conflict between different provisions of a statute if there is a reasonable meaning of the words used, considering the manner of their use, which will bring them into harmony.
The alteration of a record may be shown by parol evidence; such evidence not being within the rule excluding evidence to vary the record but for the purpose of showing that the record in question is not the true record which was actually made.
When a wrong has been done and the law gives a remedy, the compensation shall be equal to the injury, and the latter is the standard by which the former is to be measured. The injured party is to be placed as near as may be in the situation which he would have occupied had not the wrong been committed.
A party injured on account of the incompleteness or error in an abstract is entitled to all the damages proximately resulting from such injury.
Where an injured party finds that a wrong has been perpetrated on him, he should use all reasonable means to arrest the loss. It is only incumbent on him, however, to use reasonable exertion and incur reasonable expense, and the question in such cases is always whether the act was a reasonable one having regard to all the circumstances of the particular case.
The burden of proving mitigation of damages is upon the party guilty of the tortious act or breach of contract.
A known ground of disqualification of a juror, before or during the progress of the trial, is waived by withholding it or failure to raise the objection until after the verdict.
Commissioners' Opinion, Division No. 6. Error from Superior Court, Oklahoma County; Edward Dewes Oldfield, Judge.
Action by Martha Rose against James G. Sackett and others. Judgment for plaintiff, and defendants bring error. Remanded, with directions.
Geo. J. Eacock and Jennings & Levy, all of Oklahoma City, for plaintiffs in error.
James S. Twyford, of Oklahoma City, for defendant in error.
The defendant in error (plaintiff below) instituted this action in the superior court of Oklahoma county, against James G. Sackett, an abstractor of title, and Robert I. Sackett, Lizzie Jennings, and A. C. Farmer, bondsmen for said James G. Sackett, plaintiffs in error (defendants below), hereinafter referred to respectively as "plaintiff" and "defendants," for damages resulting from an incorrect abstract on certain property in Oklahoma City on which the plaintiff loaned $1,750 and subsequently thereto purchased what she thought was a fee title to said property. The defendant James G. Sackett, in making the abstract, prior to the loan above referred to, omitted in his certificate to disclose the existence of a judgment which was then a lien on said property, which said judgment was against one Dewaide, a former owner of the property, in favor of J. W. Morrison. After the plaintiff had purchased the property, said property was sold under said judgment and entirely lost to plaintiff. Plaintiff recovered judgment in the court below for the value of said property so lost to her; hence this appeal.
At the outset, we are called upon to construe section 1, Wilson's Revised & Annotated Statutes of 1903; plaintiff in error claiming that an abstractor is only liable for damages for any incompleteness, imperfections, or errors in any abstract furnished by him to the person or persons for whom he may compile, make, or furnish an abstract of title. The court below held that a party furnishing an abstract was liable in damages to any person relying upon said abstract to his detriment. We believe this construction of the statute clearly right. Section 1 reads as follows:
This statute seemingly has two inconsistent provisions. The first part of the section provides that the abstractor shall give bond, etc., said bond conditioned that he will properly demean himself in the business of abstracting and pay all damages that may accrue to any person by reason of any incompleteness, imperfection, or error in any abstract furnished by him. The latter part of the same section provides that the abstractor and his bond shall be liable to the state or territory in the penal sum of $100 and to any county for mutilating the records, etc., and to any persons for whom he or they may compile, make, or furnish abstracts of title, to the amount of damage done to said person or persons by any incompleteness, imperfection, or error made by such person, firm, or corporation in compiling said abstract.
It is clear that the former part of the section makes the abstractor liable to any person by reason of any error in any abstract furnished by him. The latter part of the section provides that the abstractor is liable to any one to whom he furnishes an abstract. It seems to us that these two expressions can be construed together without doing violence to either. The latter part of the section in no wise repeals, modifies, or curtails the clear import and purpose of the Legislature to make an abstractor liable to any person injured by relying upon his abstract as provided in the first part of the section. The liability in the first portion of the section is general. The latter part of the section provides that he is liable to the party to whom he furnishes the abstract and does not undertake to confine or curtail his liability to any other person relying upon the correctness thereof to his injury. The section might well read:
"The abstractor will pay all damages that may accrue to any person by reason of any incompleteness, imperfections or error in any abstract furnished by him and to any person or persons for whom he or they may compile, make or furnish an abstract."
Would it be contended that the provisions, read together as above, indicated anything else than that the abstractor's liability extends to any person relying upon the abstract, whether it was furnished to him in the first instance or furnished to some other person?
This construction of the statute makes it a harmonious whole and gives full effect to all of its provisions and does violence to none. Harmony, not confusion, is to be sought for by statutory construction. Conflicts between different provisions of a statute are not to be held to exist, if harmony, by any reasonable construction of them, can be discovered. The true rule has often been said to be that where two acts or parts of acts would be reasonably susceptible of a construction that will give effect to both and to the words of each, without violence to either, it should be adopted, in preference to one which, though reasonable, leads to the conclusion that there is a...
To continue reading
Request your trial