Pittsburg Mortgage Investment Co. v. Cates

1932 OK 562, 13 P.2d 156, 158 Okla. 238, 1932 Okla. LEXIS 994

• Court: Supreme Court of Oklahoma
• Decided: July 19, 1932
• Docket: 21166
• Status: Published

Opinion

HEFNER, J.

This is an action brought by William A. Oates in the district court of Beaver county against the Pittsburg Mortgage Investment Company and others to recover damages for failure .to release a mort gage. Trial was to the court and resulted in judgment in favor of plaintiff. Defendants assert that the judgment is contrary to law and not sustained by the evidence.

Plaintiff’s right of recovery and measure of damages are fixed by section 7642, C. O. S. 1921 10. S. 1931, sec. 11266]. Plaintiff admits in hisi brief that he has not complied with this section, and is not entitled to relief thereunder. He, however, claims he is not seeking to recover the penalty therein provided, but seeks to recover actual damages. It is his contention that actual damages may be recovered in addition to the penalty prescribed by statute, and that it is not necessary, in order to recover such damages, to plead and prove compliance with this statute. This contention has been decided against him in the case of Pittsburg Mortgage Investment Co. v. Cook, 150 Okla. 236, 1 P. (2d) 666. It is there said:

“The remedy and measure of damages, as provided by section 7642, O. O. S. 1921, for failure to release a mortgage, is exclusive. Damages, in addition to the damages thereby provided, cannot be recovered, nor can a recovery be had where the provisions of the statute have not been complied with.”

Under the authority of that case, the judgment is reversed and the cause remanded with directions to enter judgment in favor of defendants.

LESTER, O. J., CLARK, V. O. J., and OULLXSON and KORNEGAY, JJ., concur. RILEY, SWINDALL, ANDREWS, and MC-NEILL, JJ., absent.