Midland Savings & Loan Co. v. McCurry

This action was commenced by the plaintiff in error, hereinafter called the plaintiff, against the defendants in error, hereinafter called the defendants, to recover a balance upon a bond executed by defendant Nathaniel A. McCurry to the plaintiff for the sum of $700, and to foreclose a mortgage upon real estate in Pontotoc county given to secure payment of said bond. The cause was tried to the court, who, after making findings of fact and conclusions of law, rendered judgment in favor of plaintiff in the sum of $128.88 and $70 attorney's fees, and for foreclosure of its mortgage. The plaintiff brings this proceeding in error.

The same questions of law are involved in this case as in the case of Midland Savings Loan Co. v. Deaton, ante, p. 622,157 P. 285, this day decided by this court, and as the facts and the assignments of error, except as to parties and the amounts claimed to be due and to have been paid, are the same as in that case, this case will be governed by the opinion in that case.

In this case the defendants agreed to pay $10 monthly as stock dues, $5.83 monthly as installments of interest, and $1.17 monthly as premium. There is no complaint made by plaintiff of the correctness of the finding of the court that the defendants have paid plaintiff the sum of $571.12 upon stock, interest, premium, and fines. We think the court fell into the same error in this case that he did in the Deaton Case in not allowing plaintiff any interest upon the money lent. The court deducted the payments made by defendants from the principal sum of the loan, and rendered judgment for the balance remaining unpaid of the principal sum without interest. We think the judgment of the court should be affirmed, with directions to modify the judgment heretofore entered so as to give plaintiff judgment for the sum of $700, with interest thereon from the date of the last interest payment made by defendants at the rate of $5.83 per month until the date of judgment, less the sum paid by defendants as dues upon stock, as premium, and as fines, with interest computed at the same proportionate rate as the principal sum bears upon said sums from the date they were severally paid, and that plaintiff be allowed an attorney's fee of $70.

By the Court: It is so ordered.