109 Fla. 491 | Fla. | 1933
Lead Opinion
The record in this case shows that Cady and the firm of Webb Mevers, Contractors, entered into an agreement whereby the contractors were to erect several houses in Coral Gables for Cady, and Cady was to pay for such work as the construction progressed: Cady, whose home was in Brooklyn, N.Y., could not be in Florida during the time of construction, consequently the fourth paragraph of the building contract read as follows:
"4. That the owners agree to place in a banking institution in Dade County, Florida, to be agreed upon by the parties, sufficient money to meet all bills for labor and *492 material actually incurred in the building and improvements, and to have such sums ready to be paid to the parties entitled to receive such payments, as they are incurred, and as they fall due; said payments to be made upon certificate of the contractors approving the payment and instructing the bank selected by the parties to pay the same."
With a view of selecting a bank for the deposit, Cady and a member of the contracting firm went to The Bank of Coral Gables and talked with the president and cashier. The president was asked what charge would be made for handling such a transaction and told the parties the charge would be "nominal." According to the testimony, this charge was later omitted in order to help Webb Mevers, who were customers of the bank, put over the deal with Cady. However, before the deposit was made, Mevers wanted to know if there was any way the bank could pay interest on the deposit, and, later, a director of the bank advised the parties to purchase certificates of deposit, which would draw interest and would also eliminate much red tape for the bank in the handling of the transaction. The cashier agreed that this would be the better way to handle the transaction. Cady then produced a check, payable to Webb Mevers, which check was properly endorsed and given to the cashier, who drew the certificates of deposit and a cashier's check, which instruments were payable to Webb Mevers, but were retained by the bank and Webb Mevers were given a letter reading as follows:
"Coral Gables, Fla. April 2, 1930.
Webb Mevers, Coral Gables, Fla.
Gentlemen:
*493This is to acknowledge receipt of the following:
Our cashier's check No. A8089 payable to your order for $1,500.00
Certificate of Deposit No. 79 payable to your order for $5,500.00
Certificate of Deposit No. 80 payable to your order for $5,500.00
Certificate of Deposit No. 81 payable to your order for $1,000.00.
It is our understanding that we are to hold the above described cashier's check and certificates of deposit and from time to time, at your direction, as construction progresses on the buildings which you are erecting for Dr. E. E. Cady, we will deposit to your regular account upon your properly endorsing these items, amounts specified as needed as shown by proper statements of costs which are to be delivered to us, and we in turn will forward same to Dr. Cady in Brooklyn, New York.
Yours very truly,
(Signed) T. H. Tumlin. T. H. Tumlin, Cashier.
THT/e"
a copy of which letter was given to Cady.
Webb Mevers started construction of the houses, drawing sums from the bank as the work progressed. On July 11, 1930, the bank closed its doors owing a principal balance of $7391.76 to the contractors. The appellant was placed in charge of the bank as liquidator and the contractors claimed a preference of the bank's assets for the above sum, this was denied by the liquidator and the claim allowed as a general claim. Cady was forced to pay for the completion of the construction work, whereupon Webb Mevers executed an assignment of the above claim to Cady. *494
The Chancellor allowed the claim as a preferred claim, and also allowed the sum of $18.34 as interest on the certificates of deposit.
The defendant appealed.
The essential facts involved in the present case and the case of Newsom v. Tampa Shipbuilding Engineering Company,
Counsel for appellant argued that the fact the contract of the depositing parties with reference to the manner of depositing the fund was changed by the bank with the knowledge of said parties, although the remainder of the contract was carried out by the bank, is sufficient to create an entirely new contract and thus defeat recovery. We call attention to the fact that this was also done in the *495 Tampa case in that the receipt for the money in the Tampa case recited that the check was received and was to be held in accordance with the letter of instruction "except that the money is to be held in a certificate of deposit."
The fact that interest on the deposit was requested by the depositing parties, and allowed by the bank, cannot be made a determining feature of the present case. Neither will the fact that the bank used the deposit as though it was a general deposit be controlling. Meyers et al. v. Matusek,
A certificate of deposit is a negotiable instrument, Elmore County Bank v. Avant,
On authority of the opinion in the case of Newsom v. Tampa Shipbuilding Engineering Company,
WHITFIELD, ELLIS, TERRELL, BROWN and BUFORD, J. J., concur.
*496DAVIS, C. J., disqualified.
Stapp, Gourley, Vining Ward, for Appellant;
Bryant Pittman, for Appellee.
Addendum
This case coming on to be heard upon the petition of the appellant for re-hearing, and said petition having been duly considered by the Court;
It is thereby ordered and adjudged that the petition for re-hearing herein be and the same is hereby denied.
WHITFIELD, ELLIS, TERRELL, BROWN and BUFORD, J. J., concur.