Richardson v. Barnhart

• Decision Date: 28 June 1932
• Docket Number: 20665.
• Citation: 16 P.2d 98,160 Okla. 246,1932 OK 506
• Parties: RICHARDSON v. BARNHART et ux.
• Court: Oklahoma Supreme Court

16 P.2d 98

160 Okla. 246, 1932 OK 506

RICHARDSON v. BARNHART et ux.

No. 20665.

Supreme Court of Oklahoma

June 28, 1932

Rehearing Denied Nov. 22, 1932.

Syllabus by the Court.

1. Where the facts on a second appeal are practically the same as on a first appeal, the decision on the first appeal is the law of the case in all of its subsequent stages, and will not be reviewed on a second appeal.

2. Where a judgment is reversed by this court by an opinion with directions to render judgment consistent with the views therein expressed, there is no necessity for taking additional evidence, and a judgment rendered in conformity with the mandate of this court is valid.

3. The penalty for exacting usury in this state is that the person guilty thereof shall forfeit twice the amount of the interest which the note, bill, or other evidence of the debt carries with it or which has been agreed to be paid thereon.

4. In an action on a promissory note in which the defendant enters a plea of usurious interest charged but not paid, the plaintiff is entitled to judgment for the full amount contracted by the defendant to be paid to the plaintiff, and as a set-off thereto, the defendant is entitled to a judgment for twice the amount of the entire interest collected reserved, charged, or received in the transaction, each party being entitled to an attorney's fee as provided by the statute and contract.

Appeal from District Court, Atoka County; P. L. Gassaway, Judge.

Action by M. J. Richardson against C. H. Barnhart and wife. From the judgment rendered, the plaintiff appeals.

Reversed and cause remanded with directions.

Rehearing denied; CLARK, V. C.J., and RILEY, J., dissenting.

CLARK V. C.J., and RILEY and CULLISON, JJ., dissenting.

Hatchett & Ferguson, of Durant, for plaintiff in error.

Paul N. Buford, of Durant, for defendants in error.

ANDREWS J.

This cause was heretofore before this court in Barnhart et ux. v. Richardson, 134 Okl. 19, 272 P. 418. By the decision of this court at that time the judgment of the trial court was reversed with directions to the trial court to render judgment consistent with the views therein expressed.

The mandate was filed in the district court on December 28, 1928, and it was spread of record on January 31, 1929. On March 11, 1929, the trial court rendered judgment in favor of the defendants and against the plaintiff in the sum of $3,600, together with an attorney's fee of $360, and canceled the note sued upon and the mortgage securing it.

The plaintiff contends that the trial court erred in rendering judgment without hearing any evidence. The judgment as rendered was based upon the facts shown by the record at that time and the mandate and decision of this court. No additional evidence was necessary. There was no error in rendering judgment on the evidence shown by the record. The judgment is in conformity with the mandate of this court, except as hereinafter stated.

The plaintiff herein contends that "the trial court had no information as to whether any of the interest had been paid." Under the provisions of our statute, under the facts in this case, it is immaterial whether or not the interest has been paid.

The judgment is not contrary to law except that it is excessive. By it the note sued upon in this action was canceled. The question is thus presented as to whether the amount of the recovery on a counterclaim for usurious interest charged and reserved should be deducted from the amount of money actually paid to the borrower by the lender or from the amount which the borrower agreed to pay to the lender.

We are not unmindful of the decisions of courts construing statutes and constitutional provisions of other states, in some of which it is held that usurious contracts are void. Neither the Constitution nor the statutes of Oklahoma so provide. This court in Stockyards State Bank v. Johnston et al., 52 Okl. 32, 152 P. 585, 587, held that such contracts are not void. It said: "Usury was not known to the common law, being a creature of the statute, and therefore we must look to the statute in each particular jurisdiction to determine the rights and remedies of the parties to a usurious transaction. 39 Cyc. 1006. While usury statutes usually prohibit the making of contracts of loan at a higher rate than the specified legal rate, they also provide specific penalties and forfeitures for violation thereof, which preclude the implication in such cases that the legislators intended contracts in violation of such statutes to be absolutely void. In some states, however, contracts in violation of the usury statutes have been specifically declared void by the very terms of the statute (39 Cyc. 911), and to determine whether or not such usurious contracts are void we need look no further than the statute of the state, as the statute itself is controlling."

It had before it the provisions of section 1005, Revised Laws 1910, hereinafter referred to, and with reference thereto it said: "From a reading of the above statute it is quite apparent that the penalty for exacting usury in this state makes a person guilty thereof liable for certain penalties provided for in this statute, and does not render the entire contract void, unless the penalties exceed the amount due under the contract."

In Anderson v. Tatro, 44 Okl. 219, 144 P. 360, it was held that the remedy provided by the statute is exclusive.

The constitutional provision with reference to usury is contained in section 3, article 14, thereof. Under the terms of that section the provisions thereof are subject to such changes as the Legislature may prescribe. Pursuant to that authority the Legislature at the 1910 session adopted House Bill No. 69 (chapter 119, Session Laws 1910). By section 1 of that act the maximum legal and contract rates of interest were fixed. That section was carried forward by the revisers as section 1004, Revised Laws 1910, with minor changes in the language, and appears as section 5097, C. O. S. 1921. Section 2 of the 1910 act was carried forward by the revisers as section 1005, Revised Laws 1910, with minor changes in the language. Section 3 of the 1910 act was carried forward by the revisers as section 1006, Revised Laws 1910, with minor changes in the language, and appears as section 5103, C. O. S. 1921. It provides for the allowance of an attorney's fee for the use and benefit of the attorney of record of the prevailing party in an action involving usurious interest. Under the decisions of this court, construing the provisions of section 1005, supra, usurious interest which had been paid could not be recovered in an action on the note or instrument evidencing the indebtedness, but a claim therefor was required to be litigated in a separate action. Union Savings Ass'n v. Cummins et al., 78 Okl. 265, 190 P. 869, 871; Daniels v. Bunch et al., 69 Okl. 113, 172 P. 1086. In Anderson v. Tatro, supra, it was held that the recovery of usurious interest paid could be had only from the person taking or receiving the usurious interest and not from the person reserving or charging usurious interest. Those facts, among others, were the cause of the enactment of chapter 20, Session Laws 1916, by section 1 of which section 1005, supra, was amended to provide that, when a suit was instituted upon a note, bill, or other evidence of indebtedness, where a greater rate of interest had been collected, reserved, charged, or received than authorized by law, the defendant or his legal representative might plead as a set-off or counterclaim in the action twice the amount of the entire interest collected, reserved, charged, or received in the transaction. That section was carried forward by the compilers as section 5098, C. O. S. 1921. As stated in First State Bank v. Brooks, 127 Okl. 220, 260 P. 502, the provisions of section 5098, supra, changed materially the law with reference to the penalty for usurious interest.

The 1916 act consists of five sections. Those sections appear as sections 5098, 5099, 5100, 5101, and 5102, C. O. S. 1921. The provisions of that act are controlling in the case at bar.

It will be noted that in neither the Constitution nor the statutes referred to was there any provision avoiding the debt, and the language used therein is not susceptible of such a construction.

The constitutional provision as to the taking. receiving, reserving, or charging being knowingly done does not appear in either the 1910 act or the 1916 act, supra, and the provision of section 1005, supra, as to a demand does not appear in the 1916 act.

Under the provisions of section 5098, supra, a set-off or counterclaim in twice the amount of the entire interest charged is permissible. McKanna v. Thorne, 87 Okl. 74, 209 P. 1039. There is an excellent review of the Oklahoma decisions in Mires v. Hogan, 79 Okl. 233, 192 P. 811, 820, in which it was said: "The amendatory act of March 4, 1916, not only makes the penalty for charging or receiving usurious interest a defense by way of set-off, but also makes it a good counterclaim, in the action to recover the debt."

An analysis of the 1916 act discloses that it provides a penalty for the taking, receiving, reserving, or charging a greater rate of interest than is provided by law, and a comprehensive procedure for the enforcement of the penalty. Section 5098, supra, provides for the penalty in the following language: "The taking, receiving, reserving or charging a greater rate of interest than is provided by the preceding section shall be deemed a forfeiture of twice the amount of interest which the note, bill or other evidence of debt carries with it, or which has been agreed to be paid thereon."

It provides two methods for the enforcement of the penalty so provided, one of them being in...