223 P. 841 | Okla. | 1923
This controversy was before this court heretofore in cause No. 7963, Mary A. Daniels, Plaintiff in Error, Y. Abel N. Bunch et el., Defendants in Error,
There is now involved here the question of the application of the law of the case to the facts. The applicable statement of the law contained in the former decision is:
"The evidence, however, discloses that in this transaction the three notes, one for $350 and two for $50 each, constituted the principal debt, and were secured by the first mortgage upon the real estate of the defendant. * * * It is now well settled by this court that in enforcing the penalty for 'taking, receiving, reserving and charging' usurious interest prescribed by section 3, article 14, Oklahoma Constitution, and section 1005, Revised Laws 1910, a distinction is made depending upon whether or not the usurious interest had been paid. If usury has been contracted for, but not paid, the penalty may be set up by the defendant by way of a set-off in an action to recover the debt. If the usurious interest has been paid, however, the amount thereof or the penalty prescribed therefor cannot be set up by way of set-off by the defendant in an action to recover the debt, but can only be recovered in a separate action brought for that purpose. * * * It is therefore clear that all the interest contracted for having been paid, except the sum of $21, the trial court erred in deducting more than the sum of $21 from the debt."
The trial court, with this declaration of law to guide it, made the following finding of fact:
"The court further finds that all of the interest charged on the balance of $329 remaining due on the principal note of $350, after the forfeiture and deduction of $21 aforesaid, from the debt for usury, and accruing after the maturity thereof, to wit, ten per cent. per annum thereon from and after May 1, 1913, to this date, amounting to the sum of $237.15 at this date, is usurious and void, for the reason that the rate of interest charged in making said loan exceeded ten per cent. per annum, and that therefore the said ten per cent. interest per annum charged on said balance of $329 of principal note of $350 from and after May 1, 1913, to this date, being interest charged and reserved in said usurious contract, being after the maturity of said debt, should be forfeited and deducted therefrom. The court further finds that the amount of the loan so made to said defendant after deducting the amount heretofore paid by the defendant on same and the $21 aforesaid, for usury and without interest, is $329, the amount of the principal of the loan yet unpaid; and that plaintiff is entitled to recover said sum on the note and mortgage sued on, without interest, and an additional sum of $50 provided for in the mortgage sued on, as an attorney fee."
It will be seen, therefore, that the principal sum of money due on May 1, 1913, without interest and without any charge for an attorney's fee, is the sum of $329. This amount is found by a former decision of this court, also by the trial court, and is conceded by the parties to be correct. The trial court also allowed an attorney's fee to plaintiff in the sum of $50.
The plaintiff in error (plaintiff in the *49 court below) makes the following contentions:
(a) That since the sum of $329 was the amount of the debt due at maturity, the indebtedness should bear interest under the contract at the rate of ten per cent. per annum after maturity. The sum of $237.15 atditional interest is claimed under this theory.
(b) That in the event the foregoing contention is erroneous, that judgment should have been rendered on the 29th day of June, 1915 (the date of the first judgment in this controversy) for $329, plus an attorney's fee and that said judgment should bear interest at the rate of six per cent. per annum.
It is the contention of the defendant in error (defendant in the court below):
(a) That since the contract is usurious, that usury taints the same and forfeits the interest accruing after maturity as well as before.
(b) That no attorney's fee can be allowed in a case of this character since usury taints the collateral agreement to pay an attorney's fee.
Defendant in error further contends that plaintiff's application to the court below to allow interest after maturity in the sum of $237.15 works a forfeiture against the principal debt in a sum double the amount claimed. Since the defendant filed no cross-appeal, this contention is not before us, except by way of argument.
We have reached the following conclusion:
(a) That under the former decision of this court establishing the law of this case, and under the facts found and conceded, the sum of $329, being the principal amount of the debt without interest, and less double the amount of usurious interest, was due on June 29, 1915, the date of the first judgment.
(b) According to the weight of authority, under a statute such as ours, making the effect of usury merely a forfeiture of interest (in double the amount thereof), such usury does not taint a collateral provision of the contract providing for the recovery of a reasonable attorney's fee. 39 Cyc. 990.
(c) Under sections 1008 and 1009, Revised Laws 1910, a judgment in a case of this character should bear interest at the rate of six per cent. per annum, the rate provided by statute. We have in mind the provision of the statute authorizing a judgment on a contract to bear interest at the contract rate, but this statute cannot be applicable because the clause of the contract providing for interest is tainted with usury and unenforceable for any purpose. See Morris v. Purcell Bank Trust Co. of Purcell,
Therefore the judgment of the trial court of June 29, 1915, should have been for the sum of $329 plus a reasonable attorney's fee, and said judgment should bear interest at the rate of six per cent. per annum from said date.
The judgment of the lower court is modified to conform with these views, and, as modified, is affirmed.
By the Court: It is so ordered.
