On Petition eor Rehearing.
[Decided March 20, 1917.]
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 Pac. 694; Id., 84 Wash. 697, 152 Pac. 17; Hoffman v. Watkins, 78 Wash. 118, 138 Pac. 664; Acres v. Frederick & Nelson, 79 Wash. 402, 140 Pac. 370; Kanton v. Kelly, 65 Wash. 614, 118 Pac. 890.
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 were 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 *267so long as the claim was asserted in good faith; that no damages are recoverable at common law for failure to release k 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 á 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 thát reference to but one of 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 *268law* and- an action under the statute. He brought his action as a common law action. During the progress of the case, the court, in disregard of the allegations of the complaint, allowed a recovery under the terms of the statute. We held, as we have always held in such cases, that “having selected his form of action, he must abide by it,” and that, “if plaintiff had desired to submit an issue upon the violation of the pure food act, he should have pleaded and proved it.”
Hoffman v. WatTcms, supra, is also consistent with .our holding, if not actually supporting it. The question arose there upon testimony improperly admitted by the court. We said:
“The respondent was entitled to submit to the jury every fact within the issue, whatever its purpose was, but he was not entitled to go outside of the issue and introduce facts not issuable, either to strengthen his own case or weaken his adversary’s. When litigants. select the law and the courts' to determine their differences, they much choose a triable issue, and having chosen that issue, no party can have a fair and impartial trial upon that issue when other irrelevant issues are persistently and extensively gone into.”'
Here the appellant submitted an issue of fact and an issue of law; that is, whether the mortgage had been satisfied and whether a refusal to satisfy, under an asserted claim of good faith, excused the surety company. These were the only issues. Our ruling upon them called for a reversal of the case. Having held against the surety company upon the issues both of fact and law, we could have sent the case back for no reason other than to assess the-damages. The assessment of damages, when the fact is established, is a matter of law for the court. The penalty is not to be assessed by a jury, nor would a jury be pern mitted to assess any sum other than the penalty fixed by the statute. It is an arbitrary allowance, and may be entered by the court without testimony. We said, therefore i
*269“With the facts, the law, and the parties before us, and to the end that ultimate right between the parties may prevail, we direct that the case be remanded, with directions to enter a judgment in favor of appellants for $25 and costs.”
There has been no departure, no abandonment of remedies, and no violation of any of the principles of law or of the decisions of this court; The error of counsel lies in the fact that they have assumed that appellants had a choice of remedies, whereas they could plead but one state of facts and were entitled to but one measure of damages. If the case were sent back without prejudice or with leave to amend, respondent would file the same complaint with a prayer for $25 penalty instead of for general damages. Under the authorities cited in our opinion, an error in alleging the measure of damage will not operate to turn a litigant out of court if he has otherwise stated a cause of action; for the measure of damages is a question of law and not of fact. To hold otherwise, would be to sacrifice substance to form and to substitute for that broad justice that should prevail in all controversies inequity and injustice.
Rehearing denied.