229 P. 220 | Okla. | 1924
The defendant executed and delivered his promissory note to the plaintiff in the principal sum of $750, with interest at the rate of 10 per cent. per annum, and gave his mortgage on certain real estate improvements to secure the payment. As a part of the original transaction, the defendant caused an insurance policy to be issued on the improvements, with a loss payable clause in favor of the plaintiff, and pledged the policy with the plaintiff as additional security. The defendant made default in payment of the note and mortgage. Later the improvements were destroyed by fire and the defendant made sworn proof of loss and delivered same to the company. The insurance company refused to pay the loss according to the terms of the policy. The defendant refused to take any action for the collection of the policy for the plaintiff. The plaintiff commenced its action against the insurance company on the policy and joined the defendant. The defendant by his answer in the cause disclaimed any interest in the policy, and further set forth that, if the proof of loss purported to be sworn to by him, it was without his authority or direction. Among the several grounds upon which the company denied liability, was the further claim of the failure of the insured to make and furnish sworn proof of loss as required by the terms of the policy. The action of the defendant put in jeopardy the plaintiff's right to recover on the policy, and made recovery uncertain. The plaintiff settled and compromised the suit later for $600 by reason of the conduct of the defendant. The plaintiff incurred a necessary expense of $35 in the action on the policy. The plaintiff deducted the expenses and a charge of $150 as attorney's fees from the agreed judgment, and credited the balance of $415 on the note and interest, and commenced its action against the defendant for the balance due on the note. The defendant alleged that after the loss he assigned the insurance policy to the plaintiff in full settlement of the indebtedness. The defendant further alleged that if the assignment was insufficient, that the plaintiff was unauthorized to compromise and settle the suit for less than $750, and that he was entitled to a set-off for this sum against the amount sought to be recovered on the note. As a further counterclaim, the defendant pleaded usury in the loan. In the trial of the cause the jury found that the defendant made an assignment of the policy to the plaintiff in settlement of the indebtedness, and returned a verdict in favor of the defendant on the issue of usury and for attorneys' fees. The court approved the verdict on usury for $20 and for $25 as attorneys' fee. Among the several errors assigned by the paintiff for reversal are:
(1) That a certain part of the- sum charged the defendant for the loan was for incidental expenses in the transaction; and
(2) That the alleged assignment peaded by the defendant was without consideration and not binding on the plaintiff.
The lender in making a loan may charge a reasonable sum for the preparation of necessary papers and for inspection of collateral by agreement with the debtor. If these charges are made by agreement, such items will not be considered in determining whether the lender has charged a usurious rate of interest. First Nat. Bank of Ada v. Phares,
It is recommended that the judgment for usury and attorney's fee in the total of $45 in favor of the defendant be affirmed, with six per cent. interest from the date of its rendition. In all other respects it is recommended that the judgment be reversed and remanded, with directions for the court to allow the plaintiff the expense of $135 in the recovery on the policy. The balance of the judgment should be credited on the note. The plaintiff should be allowed interest at ten per cent. on the $750 from December 27, 1919, to the date of the payment of the judgment on the policy. The plaintiff should then be allowed interest at the rate of ten per cent. per annum on the balance of the principal of the note after the remainder of the insurance judgment is credited thereon, until the rendition of the judgment. The court should render judgment in favor of the plaintiff and against the defendant for the two items of interest so calculated, and the remainder of the principal of the note after receiving the credit from the insurance company judgment, less the $45 with interest at the rate of six per cent. per annum from the date of its rendition.
By the Court: It is so ordered.