PITTSBURG MORTGAGE INVESTMENT Co. et al. v. CATES.

PITTSBURG MORTGAGE INVESTMENT Co. et al. v. CATES.
1932 OK 562
13 P.2d 156
158 Okla. 238
Case Number: 21166
Decided: 07/19/1932
Supreme Court of Oklahoma

PITTSBURG MORTGAGE INVESTMENT Co. et al.
v.
CATES.

¶0 Mortgages--Failure to Release Mortgage--Statutory Remedy and Measure of Damages Exclusive.
The measure of damages, as provided by section 7642, C. O. S. 1921 [O. S. 1931, sec. 11266], 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.

Appeal from District Court, Beaver County; F. Hiner Dale, Judge.

Action by William A. Cates against the Pittsburg Mortgage Investment Company. Judgment for plaintiff, and defendants appeal. Reversed and remanded, with directions.

Robinson & Oden, for plaintiffs in error.
Rizley, Loofbourrow & Sweet and Miles & Miles, for defendant in error.

HEFNER, J.

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

¶2 Plaintiff's right of recovery and measure of damages are fixed by section 7642, C. O. S. 1921 [O. S. 1931, sec. 11266]. Plaintiff admits in his 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 665. It is there said:

"The remedy and measure of damages, as provided by section 7642, C. 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."