Appellant and respondent both petitioned for a rehearing, which was granted, respondent seeking clarification of the opinion to the effect that the new trial be confined to the ninth cause of action, appellant that the new trial be on all five extant causes of action.
Appellant may not complain that at its insistence the trial court compelled respondent to segregate his suit into separate causes of action.
Appellant's objection to respondent's own testimony of the value of contracts of employment which he testified he was prevented from obtaining because these mortgages had not been released should not have been sustained.
Appellant's exception to the statement in the opinion that "As pointed out, however, in Jones v. Fidelity Loan TrustCo., 7 S. Dak. 122, 63 N.W. 553, the Kansas statute [construed and followed in Thomas v. Reynolds, 29 Kan. 304, 32 P. St. Rep. 216] did not give the cause of action to anyone but the mortgagor" is well taken, the Kansas statute being, in this particular, identical with ours. Section 44-815, I. C. A., does not indicate that the effect upon the mortgagor's credit is not encompassed within the purpose of the statute. *Page 579
"The object of the statute is obvious. The record of the mortgage is constructive notice to the world of the existence of the debt and incumbrance. When this is paid, the statute has provided for satisfaction on the record, so that the world may also know the fact of payment. Unsatisfied mortgages of record tend to affect the pecuniary standing and credit of the mortgagor in business circles. In view of these considerations, the reasonableness of the statute requiring the mortgagee to acknowledge payment of the debt in as public a manner as the mortgagor had acknowledged its existence, is apparent." (Deeter v. Crossley, 26 Iowa 180.)
The above holding was approved in Livingston v. Cudd,121 Ala. 316, 25 So. 805, amplifying the same by quoting with approval from Gay v. Rogers, 109 Ala. 624, 20 So. 37, as follows:
"When the lien or mortgage has been wholly or partially satisfied by payments, fairness and justice to him demand that his credit be restored. The mortgagee having published to the world the existence of his lien or claim, when it has been removed, he owes, independent of the statute, a moral duty to his debtor, to give the same publicity to the fact that the property of the debtor is no longer incumbered. The statute makes it a legal duty to perform a moral duty, and imposes a penalty if he fails to discharge this duty. (Scott v. Field,75 Ala. 422.)"
The wording of the statute permitting a recovery by a mortgagor, his grantee, or heirs was to cover all possible contingencies and to authorize the recovery by any person who was injured in any particular by the failure to release the mortgage, thus covering not only the matter of the title, but also damages that might, as indicated in the cases above, be occasioned by injury to financial standing. Kansas has evidently adopted the narrower construction and confined recovery to the owner of the property who was injured by failure of the mortgagee to clear the title. The statute is salutary and designed to protect the mortgagor from the neglect of the mortgagee, who, after the mortgage is paid, has no more right or interest in the property and may not be particularly concerned with whether or not the title is cleared, and the legislature evidently considered the statute advisable protection. Hence, despite the misstatement as to the Kansas holding and our high regard *Page 580 for that court, our former conclusion commends itself and prevails.
We adhere to our holding that the demand herein was sufficient to have its adequacy passed on by the jury.
Mrs. Carney, stenographer in appellant's Pocatello office, testified that according to custom she sent to the home office (where the mortgages were kept) requests for releases, illustrated by defendant's exhibit 9 for identification:
"SECURITY ORDER
Br. No. A-798390 Name L.E. Henderson Branch Pocatello State or Province Idaho XX Claim Paid. Send out securities as checked.Deliver undersigned paper as checked. _____ Chattel Mortgage _____ Contract of Conditional Sale _____ Real Estate Mortgage _____ Trust Deed _____ Notes _____ XX Release _____ Assignment To Date February 1, 1940 Signed E.L. Bjornlie"
That pursuant thereto releases were returned with covering memoranda as exhibit 8 for identification:
"ALLIS-CHALMERS MANUFACTURING CO. (Letter enclosing documents)
Milwaukee, Wis. 2-5-40 B. R. No. 798390 Name L.E. Henderson Pocatello Branch
Complying with yours of 2-1-40 We attach hereto the instruments checked below:
*Page 581X Chattel Mortgage _____ Notes No., _____ _____ Real Estate Mortgage _____ Contract of Conditional Sale _____ Trust Deed _____ X Release _____ _____ _____ Assignment to . . . _____ . . . . . . . . . . . . . . . . . . . . . . . . M. Nicholas Remarks: ................................................."
She testified that thereupon she enclosed these releases with letters (three copies of which were admitted as defendant's exhibits 7, 11, and 15) and mailed them to respondent.
The court sustained respondent's objections to the above inter-office requests and return memoranda, exhibits 8, 9, 12, 13, 16, 17, 18, 19, for identification, covering the four mortgages in question.
In enacting chapter 106, 1939 Session Laws, page 175,1 the legislature apparently intended to broaden the scope of admissibility of records made in the regular course of business. (Freeman v. Mutual Life Ins. Co. of New York, 342 Pa. 404,21 A.2d 81, 135 A.L.R. 1249; Skoller v. Short, 35 N.Y. S. (2d) 68; Reed v. Order of United Commercial Travelers,123 F.2d 252; Cottrell v. Prudential Ins. Co. of America, 23 N.Y. S. (2d) 335; 120 A.L.R. 1133.
The statute under which respondent sues is penal and to be strictly construed. (Harding v. Home Investment etc. Co.,49 Idaho 64, 286 P. 920.)
While the issue of whether valid releases were sent was clearly before the jury and the jury by general verdict may have determined either that no releases were sent or that invalid releases were sent, we cannot say the rejection of these memoranda and their consequent non-consideration by the jury may not have affected the result prejudicially *Page 582 to appellant. Therefore, these memoranda should have been admitted, limited, like the copies of the letters, by instruction 12, supra.
The rejected exhibits concern the first four causes of action, recovery on which is, of course, a condition precedent to recovery on the ninth. A new trial should be granted on all five causes of action.
1 "Section 1. DEFINITION. The term 'business' shall include every kind of business, profession, occupation, calling or operation of institutions, whether carried on for profit or not.
"Section 2. BUSINESS RECORDS. A record of an Act, condition or event, shall, insofar as relevant, be competent evidence if the custodian or other qualified witness testifies to the identity and the mode of its preparation, and if it was made in the regular course of business, at or near the time of the act, condition or event, and if, in the opinion of the court, the sources of information, method and time of preparation were such as to justify its admission.
"Section 3. UNIFORMITY OF INTERPRETATION. This Act shall be so interpreted and construed as to effectuate its general purpose to make uniform the law of those states which enact it.
"Section 4. SHORT TITLE. This Act may be cited as the Uniform Business Records as Evidence Act.
"Section 5. REPEAL. All acts or parts of acts which are inconsistent with the provisions of this Act are hereby repealed."