124 F.2d 995 (10th Cir. 1942), 2318, John R. Alley & Co. v. Federal Nat. Bank of Shawnee, Shawnee County, Okl.

Docket Nº:2318.
Citation:124 F.2d 995
Party Name:JOHN R. ALLEY & CO., Inc., et al. v. FEDERAL NAT. BANK OF SHAWNEE, SHAWNEE COUNTY, OKL.
Case Date:January 13, 1942
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 995

124 F.2d 995 (10th Cir. 1942)

JOHN R. ALLEY & CO., Inc., et al.

v.

FEDERAL NAT. BANK OF SHAWNEE, SHAWNEE COUNTY, OKL.

No. 2318.

United States Court of Appeals, Tenth Circuit.

January 13, 1942

Page 996

William J. Crowe, of Oklahoma City, Okl. (James S. Twyford and Solon W. Smith, both of Oklahoma City, Okl., on the brief), for appellants.

Mark Goode, of Shawnee, Okl. (John L. Goode, of Shawnee, Okl., on the brief), for appellee.

Before BRATTON, HUXMAN, and MURRAH, Circuit Judges.

HUXMAN, Circuit Judge.

John R. Alley & Company, Inc., 1 entered into certain contracts with the Oklahoma State Highway Commission for the construction of highways. It completed the work but failed to pay a number of labor and material bills, and it became necessary for the bonding company 2 to assume and pay these bills. The company instituted suit to determine its right and the right of other claimants to certain funds still in the hands of the highway commission. During the progress of the work the contractor had borrowed various sums from the Federal National Bank of Shawnee, Oklahoma, 3for which it gave its notes. The bank filed its answer in the proceeding, alleging that the contractor was indebted to it in the sum of $5,177.16, the balance due on the notes secured by assignment of contractor's estimates. It prayed for judgment against the

Page 997

contractor in this amount and for a further judgment decreeing its indebtedness to be secured by an assignment of the amount due the contractor from the highway commission. Other defendants filed answers setting up their claims.

Thereafter, the contractor filed an amended answer and counterclaim alleging that the bank had charged usurious interest on the various loans, in violation of law, in the total sum of $5,777.65. It prayed that the bank take nothing under its claim and that it have judgment against the bank for $11,555.30, twice the amount of the usurious interest charged. The bank filed a motion to dismiss the amended answer and counterclaim on the ground that the pretended claim of usury could not be set up in this action and could be maintained only in an independent action at law against the usurer. This contention was sustained and judgment was entered dismissing the answer and counterclaim of the contractor.

12 U.S.C.A. § 86 provides: 'The taking, receiving, reserving, or charging a rate of interest greater than is allowed by the preceding section, when knowingly done, shall be deemed a forfeiture of the entire interest which the note, bill, or other evidence of debt carries with it, or which has been agreed to be paid thereon. In case the greater rate of interest has been paid, the person by whom it has been paid, or his legal representatives, may recover back, in an action in the nature of an action of debt, twice the amount of the interest thus paid from the association taking or receiving the same: Provided, That such action is commenced within two years from the time the usurious transaction occurred.'

It has been held without exception that the right granted by the statute can be asserted only in a separate and independent action in the nature of an action in debt. Barnet v. Muncie...

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