Anderson v. Tatro
| Decision Date | 10 November 1914 |
| Docket Number | 3899. |
| Citation | 144 P. 360,44 Okla. 219,1914 OK 526 |
| Parties | ANDERSON v. TATRO. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
The giving of a new note in renewal of a previous one is not a payment of the earlier note as contemplated by section 3 of article 14 of the Constitution. This section contemplates an actual payment and not a promise to pay in future.
Where a note containing usurious interest is sold to a third party and the borrower pays the note in full to the third party, he cannot maintain an action against the payee, under section 3 of article 14 of the Constitution, for a return of double the amount of the interest paid. Said section gives a right of action against the person, firm, or corporation taking or receiving the same, and a corporation to whom a usurious note was indorsed and who takes and receives the usurious interest is alone liable for the penalty under said section.
Section 3, supra, gives the debtor the right to sue for and recover twice the amount of interest paid from the person, firm, or corporation taking or receiving the usurious interest. The debtor can resort to no other mode or form of procedure, as the remedy is exclusive.
Commissioners' Opinion, Division No. 1. Error to District Court, Custer County; James R. Tolbert, Judge.
Action by G. M. Anderson against Joseph Tatro. Judgment for defendant, and plaintiff brings error. Affirmed.
Snodgress & Darnell, of Arapahoe, for plaintiff in error.
Phillips & Mills, of Arapahoe, for defendant in error.
On January 18, 1909, G. M. Anderson, plaintiff in error, who was plaintiff below, borrowed from Joseph Tatro, defendant in error, who was defendant below, the sum of $600, and gave his note of that date for $690 due in one year. No payments whatever, either of principal or interest, were ever made on this note; but on January 18, 1910, when the note fell due it was taken up by giving of a new note in the sum of $762.45, it being admitted that interest was computed at the rate of 18 per cent. for seven months, and the new note was transferred to the Custer County State Bank before due, in due course of business and for a valuable consideration. Payment of said last note was made by the plaintiff to the Custer County State Bank.
Suit was instituted by G. M. Anderson against Joseph Tatro in the district court of Custer county on the 26th day of May, 1910 alleging that on the 18th day of January, 1909, Joseph Tatro entered into a corrupt agreement with the plaintiff for the purpose of receiving and taking a greater sum for the loan of $600 than allowed by law, and that for said loan of money he had charged the sum of $90, which sum was knowingly received reserved, and charged, and asked judgment for double the amount of said interest so paid amounting to $180. An amended petition was filed on August 6, 1910, and issue was joined.
On August 29, 1910, G. M. Anderson instituted an action against Joseph Tatro to recover $154, alleging that the defendant had entered into a corrupt agreement with the plaintiff for the purpose of charging and receiving a greater sum for the loan of $690 than was allowed by law, which sum amounted to $72.45, and alleged that the excessive interest was knowingly charged and received by the defendant Joseph Tatro. At the time of trial the two causes were consolidated, a jury waived, and the cause tried to the court, resulting in a judgment for the defendant.
The evidence in this action shows that the plaintiff did not pay to the defendant the $690 as alleged in the first cause of action, but gave a renewal note for $762.45, which included seven months' interest. This note is the basis for recovery in the second cause of action. The giving of a new note in renewal of a previous one is not a payment of the earlier note as contemplated by section 3 of article 14 of the Constitution, as this section contemplates an actual payment and not a promise to pay in the future. First Nat. Bank v. Lasater, 196 U.S. 115, 25 S.Ct. 206, 49 L.Ed. 408; Brown v. Marion Nat. Bank, 169 U.S. 416, 18 S.Ct. 390, 42 L.Ed. 801; Driesbach v. Nat. Bank, 104 U.S. 52, 26 L.Ed. 658; Rushing v. Bivens, 132 N.C. 273, 43 S.E. 798.
The next question presented by the record requires a consideration of section 3, supra, which section reads as follows:
The foregoing section is similar to the federal act (Rev. Stat. § 5198 [U. S. Comp. St. 1913, § 9759]), and the Supreme Court of the...
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