willingness of the Alderson Coal Company to give the required bond, and it must be presumed that its board of directors controlled its volition. Cavanagh, as he was not bound to refrain from doing, sold his controlling interest in the stock of this company immediately after entering into said escrow contract; but it does not appear that the failure of the Alderson Coal Company to give the bond was due to this or to any act or omission on his part, or, for that matter, upon the part of Swift.

ity therefor to the Indian Coal & Mining Com- anagh is blamable for the inability or unpany, and the original purpose of Cavanagh to assign, and of the Alderson Coal Company to acquire, the said lease was abandoned. Plaintiff sues to enjoin the return of said certified check to defendant and to require the McAlester Trust Company to deliver the same to himself, and said shares of stock and resignation of office to Cavanagh. The de fendant Cavanagh answers by a qualified general denial, and, which alone is important here, by a denial that the Alderson Coal Company was to give bond and a denial that the Indian Coal & Mining Company consented to the assignment. J. B. Dowell and M. J. Smith were made parties only because they had garnisheed said $3,000, as belonging to Swift.

The rights of the parties in this case de pend upon their intent, as expressed in said escrow contract, with respect to whether C.'s obligation to purchase was dependent in part upon the contingency of the Alderson Coal Company's execution of said bond, and thus, in effect, upon the absolute or effective consent of the Indian Coal & Mining Company to said assignment of said lease. If so, the judgment of the trial court should be affirmed; but if said contract should be construed as only requiring, as a condition precedent to said sale by Swift and purchase by Cavanagh, a consent so qualified as to be ineffective to assign said lease until the Alderson Coal Company should execute such bond, thus placing upon Cavanagh the risk of both the volition and the ability of said company to give such bond, the judgment should be reversed.

The provision in the consent given that the Indian Coal & Mining Company might withdraw the same and that Cavanagh should be held bound according to the original lease seems to have been an undue bur

den upon him; but it appears that he probably waived this point as a ground of objection, and, in view of our conclusion on another point, we pass this without decision.

Numerous propositions and counter propositions are urged in the briefs of the parties to this case, and each and all have deserved and had our serious consideration; but we deem it unnecessary to enter into a discussion of each in detail, the foregoing views being our answer to them all.

For the reasons stated, the judgment of the trial court should be affirmed.

BREWER, C., being disqualified, did not participate in this decision, and RITTENHOUSE, C., served in his stead.

PER CURIAM. Adopted in whole.

(55 Okl. 398) SACKETT et al. v. ROSE. (No. 4770.) (Supreme Court of Oklahoma. Jan. 4, 1916. Rehearing Denied. Feb. 15, 1916.)

(Syllabus by the Court.)

1. ABSTRACTS OF TITLE

3-LIABILITY OF

ABSTRACTOR-PARTIES. 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.

Title, Cent. Dig. §§ 2-6; Dec. Dig. 3.] 2. STATUTES 207 - CONSTRUCTION

[Ed. Note.-For other cases, see Abstracts of

FLICTS.

-CON

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 reasonThe true rule has often been said to be that able construction of them, can be discovered. 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 vioence to one which, though reasonable, leads to lence to either, it should be adopted in preferthe conclusion that there is a conflict. There is no conflict between different provisions of a words used, considering the manner of their use, statute if there is a reasonable meaning of the which will bring them into harmony.

In view of the fact that both Swift and Cavanagh were officers and stockholders in the Alderson Coal Company, and presumably equally well informed as to whether it could give bond and of the fact that S., in said letter part of the contract, informs Mr. Nichols, of the Indian Coal & Mining Company, that the Alderson Coal Company will execute such bond, which might either have been done in advance of the giving of absolute consent or after the giving of consent qualified by re quiring such bond as a condition precedent to its effect, we are of the opinion that a correct construction of said contract requires us to hold that Cavanagh's obligation to pur-3. EVIDENCE chase Swift's stock was contingent upon an RECORD. event, the execution of said bond, that never happened.

[Ed. Note.-For other cases, see Statutes, Cent. Dig. § 284; Dec. Dig. 207.]

429-PAROL-ALTERATION OF

The alteration of a record may be shown by parol evidence; such evidence not being within the rule excluding evidence to vary the It is neither alleged nor proven that Cav- record but for the purpose of showing that the

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

record in question is not the true record which what she thought was a fee title to said propwas actually made. erty. The defendant James G. Sackett, in

[Ed. Note.-For other cases, see Evidence, Cent. Dig. 88 1969-1971, 1973, 1974; Dec. Dig. making the abstract, prior to the loan above

429.]

4. DAMAGES 95-SCOPE OF REMEDY.

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.

[Ed. Note. For other cases, see Damages, Cent. Dig. §§ 222-229; Dec. Dig. 95.] 5. ABSTRACTS OF TITLE 3-DEFECTS-DAMAGES RECOVERABLE.

A party injured on account of the incompleteness or error in an abstract is entitled to all the damages proximately resulting from such injury.

[Ed. Note. For other cases, see Abstracts of Title, Cent. Dig. §§ 2-6; Dec. Lig. 3.] 6. DAMAGES 62 — MITIGATION-DUTY OF

INJURED PERSON.

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. [Ed. Note.-For other cases, see Damages, Cent. Dig. §§ 119-131; Dec. Dig. 62.] 7. DAMAGES

PROOF.

163-MITIGation-BurdeN OF

The burden of proving mitigation of damages is upon the party guilty of the tortious act or breach of contract.

[Ed. Note.-For other cases. see Damages, Cent. Dig. §§ 454-459; Dec. Dig. 163.] 8. JURY 110-DISQUALIFICATION OF JUROR -WAIVER OF OBJECTION.

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.

[Ed. Note.-For other cases, see Jury, Cent. Dig. §§ 502-513, 515-523; Dec. Dig. 110.] 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.

referred to, omitted in his certificate to disI close 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.

[1] 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:

"That it shall be unlawful for any person, firm or corporation to hold themselves out as abstractors and to engage in the business of abstracting title to real estate in any of the counties of the territory of Oklahoma, without first having executed and filed with the county clerk of the county in which said person, firm or corporation intends to engage in the business of abstracting, a bond, to be approved by the board three or more good and sufficient sureties residof county commissioners of said county, with double the amount of the bond over and above ing in the county, and worth not less than all debts, liabilities and exemptions, in the sum of five thousand dollars, conditioned that he will properly demean himself in the business of abstracting, and will pay all damages that may accrue to any person by reason of any incompleteness, imperfections or error in any abstract deface or destroy any of the records of the sevfurnished by him, and will in no way mutilate, eral offices to which he may have access, and that he will not in any way interfere with, hinder or delay the several county officers in the discharge of their duties, while using said records, in the prosecution of said business of abstracting: Provided, however, that the records shall in no case be taken from the county office to which they belong. The person, firm or corporation who shall execute and file said bond of five thousand dollars for said purpose, shall, together with the sureties thereon, be liable on said bond to the territory of Oklahoma in the penalty of one hundred dollars ($100); and to any county or person who shall be in any way damaged by any mutilation, injury or destruction of any record or records of the several county offices to which he or they may have access, to the amount of damage, actually done said county or person; and to any person or persons for whom he or they may compile, make or furnish abstracts of title, to the amount of incompleteness, imperfection or error made by damage done to said person or persons by any said person, firm or corporation, in compiling said abstract."

BOWLES, C. 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 This statute seemingly has two inconsist $1,750 and subsequently thereto purchased ent provisions. The first part of the section

provides that the abstractor shall give bond,, sidering the manner of their use, which will 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 personable conflict, which we cannot say of this or persons by any incompleteness, imperfection, or error made by such person, firm, or corporation in compiling said abstract.

impaneled and drawn according to law; in Ira S. Hopkins deeded the same land to other words, that talesmen were ordered at Delilah B. Hopkins. This deed was rea time when there were ample jurors on the corded on July 19, 1909. On or about the regular panel present and qualified to try 21st of July, 1909, the plaintiff, Harris, the case, and not otherwise engaged. This through his agents, employed the Washingfact was known to counsel for plaintiff in ton County Abstract Company to furnish an error, if such was the fact, at or before the abstract of title to the land, and on July 21, trial, according to their own affidavit. The 1909, the abstract company did furnish said record shows no objection made or exception | abstract to Harris, but failed to show the saved to the impaneling of the jury at the deed from Ira S. Hopkins to Delilah B. Hoptime. This being true, such disqualification kins, which was recorded two days before was waived. Horton v. State, 10 Okl. Cr. the abstract was furnished to Harris. Har294, 136 Pac. 177; Fooshee v. State, 3 Okl. ris, after receiving the abstract and relying Cr. 666, 108 Pac. 554. on the same, paid $500 for the land. Delilah B. Hopkins then sued Harris to quiet her title, and Harris gave notice to the abstract company and its sureties of that suit, and they refused to defend it. Harris defended the suit alone, was defeated, and afterward sued the abstract company. One item of damages recovered was the expense of the suit, including attorney fees. This case was appealed to this court, and one of the questions passed upon was whether or not the attorney fee and costs were proper items of damages.

[4-7] Defendant again assigns error in the refusal of the trial judge to give instruction No. A, as requested, which reads as follows: "You are further instructed that, if you find for the plaintiff in this case, you will find for her in a sum not to exceed $1,047.90."

This instruction was requested upon the theory that the "Morrison judgment" against Dewaide, the judgment upon which the property was finally sold and the judgment which

the defendant Sackett omitted from the abstract, was the extent of defendants' liability, upon the theory that it was the duty of the plaintiff, when she found that a wrong had been perpetrated upon her, to use all reasonable means to arrest the loss, and that she could not stand idly by and permit the loss to increase, and then to hold the wrongdoer liable for loss which she might have prevented; the evidence failing to show that the plaintiff did anything to lessen the damages.

says:

Judge Robberts in the opinion

the duty of the defendant in that case (defend"Under such circumstances, evidently it was ant in error herein) to use reasonable means, including necessary and reasonable expenses, to defeat, if possible, that cause of action, not only that he might reduce his own loss, but it was a duty he owed to the defendant (plaintiff in error herein) to reduce any damage he might sustain by reason of the erroneous abstract.'

Roberts v. Leon Loan & Abstract Co., 18 N. W. 702, 63 Iowa, 76, is a case in point. The syllabus reads as follows:

This case is squarely in point in our judgIt will be noted that no amount of diligence ment, and decisive of the proposition at bar, on her part could have averted the loss of and therefore binding upon us, as to the the amount of the Morrison judgment. Satis-duty involving upon the plaintiff to exercise faction of the judgment was her only remedy; reasonable diligence to reduce any damages consequently, she was entitled to a judgment she sustained by reason of the erroneous for that amount, but so far as a further abstract, after she had notice. judgment, for additional damages, was concerned, the duty to exercise ordinary care and reasonable diligence to mitigate the same rested upon her. It was only incumbent upon her, however, in this regard, to use reasonable diligence to mitigate the damages and to lessen the injury. The question in such cases is always whether the necessary acts to mitigate the damages were reasonable, hav ing regard to all the circumstances of the particular case.

In Uhlig v. Barnum, 43 Neb. 584, 61 N. W. 749, the syllabus reads as follows:

"Where two parties have made a contract, which one of them has broken, the other must make reasonable exertions to render his injury as light as possible; and he cannot recover, from the party breaking the contract, damages which would have been avoided, had he performed such duty."

In Washington County Abstract Co. v. F. S. Harris, 149 Pac. 1075 (No. 4080), opinion by Judge Robberts, not yet officially reported, Ira S. Hopkins, on July 16, 1909, deeded to the plaintiff, F. E. Harris, certain lands in Washington county, and which deed was re

"The defendant furnished plaintiff with an abstract of title, in which the period allowed for redeeming the land appeared by mistake to be 10 days longer than it actually was. Plaintif discovered the error a day before the expiration of the time allowed for redemption, but failed to obtain the money in time to redeem, and neglected to apprise defendant of the mistake. Held, that defendant was entitled to be informed of his mistake in time to enable him to avert the consequences, and that plaintiff could not recover damages without showing that such timely information was given, and that reasonable effort had been made to secure the money."

This case goes a step further than we concede to be the law, that a failure to notify the abstractor precludes a party from recov ery. A failure to notify the defendant in time to enable him to protect himself is a fact to go to the jury to aid them in determining whether plaintiff was negligent and failed to exercise ordinary care to reduce or lessen the damages.

The American and English Encyclopedia,

"As it is the duty of a party injured by a breach of contract or tort to make reasonable effort to avoid damages therefrom, such damages as might by reasonable diligence on his part have been avoided are not to be regarded as the natural and probable result of the defendant's acts. There can be no recovery therefore for damages which might have been prevented by reasonable effort on the part of the person injured."

We believe these decisions and the text

declare a doctrine consonant with honesty and fair dealing. To hold otherwise would be an absolute perversion of justice and would many times work injuries destructive and ruinous in their consequences. However, reasonable diligence and ordinary care

is all that is necessary or can, in justice, be required. Time, knowledge, opportunity, and expense are all to be taken into consideration in determining whether or not the party injured exercised ordinary care to lessen the loss and mitigate the damages. The want of ordinary care is a question of fact to be submitted to the jury and to be determined by them.

cluded all the damages suffered by her proximately resulting from the failure of the defendant to include the Morrison judgment in the abstract; in other words, the general rule is that, when a wrong has been done and the law gives a remedy, the compensation shall be equal to the injury; the latter is the standard by which the former is to be measured. The injured party is to be placed as would have occupied had the wrong not been near as may be in the situation which he committed. With this modification, that where a party is entitled to the benefit of a contract and can save himself from a loss arising from the breach of it at a trifling exduty to do it, and he can charge the delinpense, or with reasonable exertion, it is his quent with such damages only as with reasonable diligence and expense he could not prevent. The burden of proving circumstances in mitigation of damages is upon the party guilty of the tortious act or breach of

contract.

The evidence was before the jury as to what the plaintiff did to lessen the damages, The instant case was tried upon the the- and it was the duty of the court to instruct ory, on the part of the plaintiff, that she the jury as to her duty to exercise ordinary was entitled to recover all the damages prox- care and reasonable diligence to avert the imately resulting to her on account of the loss, if the same could be done at trifling exmistake in the abstract, and that no duty pense and reasonable exertion on her part. devolved upon her to make any effort to This evidence showing lack of diligence on lessen or mitigate the damages. The defend- the part of the plaintiff was admissible unant seemed to be of the opinion that, if lia-der the general issue, and it was the duty of ble at all, the maximum of recovery was the the court to instruct the jury that, if they amount of the Morrison judgment. The believed that the Morrison judgment was of plaintiff's theory was correct, with this modi- record at the time this abstract was made fication: She was entitled to all of the dam- and delivered, the plaintiff, in any event, ages proximately resulting to her on account would be entitled to the value of that judgof the failure of defendant to note the ex-ment as heretofore suggested, and such othistence of the Morrison judgment in the abstract, except damages as might, by reasonable diligence on her part, have been avoided. Such damages are not to be regarded as the natural and probable result of defendant's acts.

Under the admitted facts in this case, the plaintiff, after discovering the property was advertised for sale and about to be sold under the Morrison judgment, made no effort either to satisfy the judgment or notify the defendant. It is true, she was in Arlington, Ohio, but she had two days, or possibly three, in which to satisfy the judgment or notify the defendant, or have made some effort with this end in view, or given some reasonable explanation for her neglect. This property, according to plaintiff's evidence, was worth $5,000. It was within the range of possibilities for her to have borrowed sufficient money upon this property to have satisfied the judgment.

We believe plaintiff's right to recover in

er damages as proximately resulted to her by reason of the erroneous omission in the abstract, and which she could not have prevented by the exercise of reasonable diligence and care on her part. We therefore believe that instruction No. 10 should have

been given, as plaintiff's right to recover the amount of the Morrison judgment was unquestioned, if the judgment was of record at the time the abstract in question was extended; but her further recovery should have been limited by the instructions of the court, as heretofore suggested.

We therefore recommend that the judgment be remanded, with instructions that if the plaintiff remit all that part of the judgment over and above the amount of the Morrison judgment, with interest, the case be affirmed, and, should the plaintiff fail to agree to said remittitur, a new trial be granted.

PER CURIAM. Adopted in whole.