Our attention is now called to an item included in the judgment of $42,763.30 as interest computed from June 29, 1933, the date the Trust Company became insolvent, to the date of the judgment and included therein. It is asserted that allowance of interest against the Trust Company after it became insolvent and its affairs were placed in the hands of the State Bank Commissioner is contrary to and in conflict with decisions of this court, and constitutes an improper allowance after the date of insolvency.
This matter was not specifically presented to the trial court nor was it specifically urged or separately presented in the original brief.
Ordinarily we would consider the question as coming too late, but since the question of allowance of interest to this particular creditor vitally affects the interest of other unsecured creditors, justice demands that the question be given proper consideration.
It is conceded that the judgment in this case amounts to no more than to establish the claim of plaintiff as an ordinary unsecured creditor to be paid as other unsecured claims, and upon the same basis.
Defendants contend that if the assets of the company are insufficient to pay all other common creditors in full, plaintiff should be paid pro rata along with other common creditors.
Examination of the authorities cited by both parties on the question will disclose that the general rule of law supports the contention of plaintiff in error herein. The question appears to be settled in this jurisdiction *Page 415 in Re American Bank Trust Co. of Ardmore, 176 Okla. 202,55 P.2d 470. Therein the general rule is recognized as being:
"As against the assets of insolvent bank, generally interest on a claim is calculated only to the date of suspension and the vesting of title of the assets in the receiver, unless there are surplus assets after paying the indebtedness. As between the creditors themselves, some cases hold that no interest is allowed upon their respective claims, whether preferred or unpreferred, after the appointment of a receiver. * * *
"Interest at the contract rate should be credited on the accounts of creditors to the date the receiver took possession of the bank's assets and thereafter interest is not allowable, as between the creditors themselves, but is allowable against the bank, and if the assets are sufficient for the payment of the principal indebtedness as established at the time the receiver took possession, interest should be paid at the legal rate before distribution of the surplus to the stockholders."
There are authorities to the contrary, but they are said to apply the "minority rule."
Some cases are cited allowing interest after insolvency, but a number of them are cases where it appears that the assets were more than sufficient to pay all claims in full without interest.
In this case there is no showing that the assets of the Trust Company are sufficient to pay all claims in full without interest. If such were the case, then all common creditors would apparently be entitled to interest before payment could be made to the stockholders.
In the absence of a showing of funds sufficient to pay all other common creditors interest on their claims after insolvency, it was error to allow plaintiff interest on his claim after the affairs of the Trust Company were placed in the hands of the State Bank Commissioner. Interest at the contract rate should have been computed down to June 29, 1933, the date of insolvency and no more.
The judgment of the trial court should be, and is hereby, modified to that extent. In all other respects we adhere to the former opinion. The cause is remanded, with directions to enter judgment in accordance with the views herein expressed.
BAYLESS, C. J., WELCH, V. C. J., and OSBORN, GIBSON, HURST, and DAVISON, JJ., concur. DANNER, J., dissents. CORN, J., absent.