Opinion
October 5, 1951.
Appeal from the Circuit Court for Hillsborough County, L.L. Parks, J.
C.L. Chancey and C. Shelby Dale, Fort Lauderdale, for appellant.
Knight, Thompson, Knight Bell, Tampa, for appellee.
This litigation arose out of the tangled affairs of one Charles E. Silva. The appellant here, plaintiff below, is the widow of said Charles E. Silva, who died July 26, 1949. She instituted suit against the appellee here, the defendant below, seeking to recover the balance of some proceeds derived from some insurance policies collected by the defendant, which policies had been assigned to the bank on April 10, 1945, as security for payment of certain obligations of her deceased husband, in which assignment she joined.
The Complaint is laid in two counts, one averring that the bank had collected some $32,487.70 from some five companies as the proceeds of various insurance policies theretofore issued on the life of her deceased husband and that the bank had erroneously applied, without authority, the proceeds derived therefrom towards the payment of certain obligations of plaintiff's decedent to the bank. The plaintiff acknowledged the sum of $12,158.75 as properly chargeable to the fund collected, leaving as the balance claimed due from the fund collected the sum of $20,328.95. The second count of the Complaint was laid in conversion for the bank having converted the notes or the value thereof, over and above that which the plaintiff acknowledged as being properly paid out of this fund, for which the bank was liable. The plaintiff demanded a jury trial. Attached to the Complaint was a copy of the assignment of the proceeds of the life insurance policies.
The bank in its defense set up other notes and obligations of several different categories that it claimed were owing to it by plaintiff's decedent. For convenience these will be grouped in three groups:
Group I
1. Note dated December 10, 1948, maker, Charles E. Silva, payable on demand, principal $7600.00.
2. Note dated July 6, 1949, maker, Charles E. Silva, due October 4, 1949, principal $3543.75.
3. Note dated June 6, 1949, maker, Charles E. Silva, due September 4, 1949, principal $507.50.
4. Note dated May 24, 1949, maker, Charles E. Silva, due August 22, 1949, principal $507.50.
(These four were the four that were not controverted by the plaintiff as not having been properly being paid out of the proceeds of the life insurance collected and thus are not in issue.)
Group II
5. Note dated October 19, 1948, makers, Charles E. Silva and S.C. Bexley, due October 17, 1949, payable to Exchange National Bank, principal $2531.25.
6. Note dated July 20, 1949, maker, Liquor Stores, Inc., due October 18, 1949, payable to Exchange National Bank, endorsed by C.E. Silva and S.C. Bexley, before delivery, principal $2000.00.
7. Note dated November 4, 1947, maker, Azalea Lounge, Inc., due July 24, 1949, payable to Exchange National Bank, endorsed by C.E. Silva personally before delivery, principal $500.00.
8. Note dated April 4, 1949, maker, Azalea Publishing Co., Inc., due September 4, 1949, payable to Florida Labor Advocate, Inc., endorsed by the payee corporation by C.E. Silva, President, and by C.E. Silva, personally, principal $1150.00.
9. Note dated September 19, 1948, maker, Florida Labor Herald, due October 18, 1949, payable to Florida Labor Advocate, Inc., endorsed by the corporation by C.E. Silva, President, as well as personal endorsement of C.E. Silva, principal $505.00.
10. Note dated October 16, 1948, maker, C.L. Hill, due October 14, 1949, payable to C.E. Silva and endorsed by him to defendant bank, amount $101.50.
Group III
11. Check dated July 22, 1949, signed by C.E. Silva, drawn on the International Bank of Tampa, payable to defendant, amount $1995.00.
12. Check dated July 21, 1949, signed by Gus Rippa, drawn on State Bank of West Tampa, payable to defendant, amount $2010.00.
13. Check dated July 22, 1949, signed by Gus Rippa, drawn on State Bank of West Tampa, payable to defendant, amount $1995.00.
14. Check dated July 22, 1949, drawn on the account of Cerra Silva, Inc., by C.E. Silva, President, on the International Bank of Tampa, payable to defendant, amount $2779.80.
(These last three checks of the items in Group III did not include or bear the signature of C.E. Silva individually in any place on them, but the bank contended that the money for these checks had been paid by the bank to plaintiff's decedent, and thus, since he had received the money therefor, he was obligated to the bank therefor.)
Upon this answer being filed the plaintiff moved to strike certain portions thereof, particularly those allegations pertaining to those notes and checks involved in Groups II and III above and moved for a summary judgment. Testimony was taken in the lower court at a pre-trial conference involving this matter and the court entered its judgment adjudging the bank to be entitled to have credited itself from this fund for all of the notes and checks which were included in all of the obligations stated in Groups I, II, and III above and found that the bank, having collected $32,487.70 on the policies, was entitled to credit the sum of $26,868.63 due it out of the fund collected, and awarded costs to the bank in the sum of $115.75. This left a net total due the plaintiff of $5503.32 for which judgment was entered in favor of plaintiff. Interest was denied plaintiff because the bank had been willing to pay over this fund at any time.
The bank was also ordered in the judgment entered by the lower court to transfer the notes and other obligations in Groups II and III above to the plaintiff for such recourse as she may have against the other makers, prior endorsers, or others involved; thus obviating the necessity of any matter having to be submitted to a jury on the conversion of these notes, the bank having alleged and proved that it was and had been at all times willing so to do.
The appellant appeals to this Court alleging as an assignment of error that the lower court erred in decreeing that $26,868.63 was properly chargeable to the fund collected by the bank, and that in entering the summary judgment, there should have been charged only the sum of $12,158.75, which is the amount the court found due under the notes in Group I above and which were conceded by plaintiff. She also raised a second question, namely, that she had been denied a jury trial by virtue of the court action, although she had requested one in her initial pleading.
We shall dispose of this second question first. It occurs to us that when the plaintiff herself moved to strike certain portions of the defendant's answer and thereupon moved for a summary judgment, this was tantamount, under the facts, shown in the record, to a waiver by her of her request for a jury trial. According to the record, no testimony was ever offered by the plaintiff to controvert any of the testimony given at the pre-trial conference by the defendant bank officials, or its witnesses; indeed the record shows that the court asked counsel for the plaintiff if he had testimony to offer as a defense to the evidence offered by the defendant to which counsel replied in the negative. Had the case actually gone to trial, under these circumstances, the trial court would have had no course to follow except to have directed a verdict for the defendant for there would have been no disputes in the evidence. Therefore, pursuant to Rule 43, 30 F.S.A., the trial court did not commit error when it entered a summary judgment. To hold otherwise would be to hold that a plaintiff might move for a summary judgment and then, if the holding were against her, to insist upon a jury trial even though she had no testimony to offer in support of the pivotal issues in the cause. We therefore find no merit in this contention of the appellant.
The first question, that is, whether the amounts as allowed to be applied to the bank's obligations by the lower court, were properly and correctly applied to the amounts collected by the bank from the insurance companies, depends somewhat upon an interpretation of the assignment of the policies executed and delivered by C.E. Silva during his lifetime, in the execution of which the plaintiff joined as beneficiary of the policies.
The assignment or collateral agreement states that the proceeds of the policies were assigned "as collateral security for any and all liabilities of the undersigned, or any of them, to the assignee, either now existing or that may hereafter arise in the ordinary course of business between any of the undersigned and the assignee." (Italics supplied.)
It has been noted that the assignment was executed April 10, 1945. Apparently from the testimony adduced in the lower court at pre-trial conference, plaintiff's decedent and defendant bank had been operating on a basis of banker and customer for a number of years, albeit somewhat loosely in the later years as the testimony shows, but nevertheless on the basis of banker and customer. The testimony adduced on behalf of the bank, which was unconverted — as a matter of fact no testimony was ever offered by the plaintiff to controvert any of the testimony of the bank or its officers — clearly shows that the plaintiff's decedent personally received all of the money involved in all of the matters involved in all three groups or that he himself had discounted the notes to the bank and the bank had relied upon not only his signature but upon this collateral in handling these transactions for the decedent. A bank is in the business ordinarily of loaning money, discounting notes, and cashing checks. Certainly these transactions were all in the ordinary course of business dealings as contemplated by the parties.
Those notes in Group II above were either comaker notes, notes endorsed before delivery, or discounted notes. So far as we can determine there is no difference in the liability, to the holder of a note, of either a comaker, an endorser before delivery, or an endorser for discount purposes. In other words, a holder may sue whomsoever he chooses, whether endorser, maker, or otherwise, on a note and collect from him, and the endorser may go on up the line to his prior endorser, etc.
As to the four checks involved in Group III above the testimony showed as to the Gus Rippa checks that the money in this account was actually the money of plaintiff's decedent, that he furnished the money for the initial deposit and that actually plaintiff's decedent received the money therefrom, and subsequently sent it for deposit to one of the banks to cover checks previously issued. In other words, the plaintiff's decedent was involved in "kiting" checks, probably in the hopes that some day he might strike it so that he might cover them. One of the checks was signed by a corporation concerning which the testimony showed that plaintiff's decedent was the sole active stockholder and director, and the other check was made by decedent individually. Much was made of the fact that these checks were made payable to the defendant bank rather than to the decedent individually and thus endorsed by him, but it makes no difference because whoever receives the money on a check, knowing that there were no funds in the drawee bank to pay it, is obligated for its return.
The plaintiff's decedent evidently realized that he was getting pretty well involved with the bank and on the day he committed suicide he wrote a typewritten letter to his attorney, which, though not signed personally or in his handwriting, bore the typewritten name "Charlie" and was addressed in decedent's own handwriting to Mr. C.J. Hardee, Tampa, Florida. This letter, with the original envelope in the handwriting of the decedent, bearing his name, and return address, was introduced in evidence. Appellant contended that the admission in evidence by the lower court of the unsigned letter was an error, but unsigned letters may be received in evidence if properly connected with a person as being his actual letter, by the introduction of competent evidence showing it to be so. See 20 Am.Jur. 805.
This letter fairly clinches the matter for the bank because it contained this, among other things: "I am leaving a total of $68,500 life insurance * * *. These policies have been assigned to the bank as collateral for a loan. Hood Hampton (and this is the bank teller or officer who handled all of these transactions for the bank, including the kited checks and who OK'd them for cashing, and whose testimony clearly indicates that plaintiff's decedent received all of the money for all of the obligations involved in all of the groups) will have 4 checks that he has been cashing for me that will be returned. Please contact him immediately and arrange to pay the bank for these returned checks out of the insurance money."
In addition to that a similar typewritten letter dated July 25th, 1949, was received by Hood Hampton and introduced into evidence, which says among other things: "Please forgive me for the trouble I have caused you. I did not intend to do so, and if I had a chance I could had straighten everything up. My policies will cover every cent due the bank." Thus it will be seen that the decedent as a part of his last act while on this earth recognized these as obligations of his as being in the ordinary course of business between the bank and himself. There is clearly evidenced an intention that these assignments of life insurance proceeds were to cover all indebtedness due the bank in the past, present, or future, arising in the ordinary course of business.
The only case seeming to construe a same or similar assignment is Bancroft v. Granite Savings Bank Trust Co., 114 Vt. 336, 44 A.2d 542, wherein the Supreme Court of the State of Vermont in construing the exact same assignment as in the case at bar held that this assignment covered a note assumed by one person for the benefit of another which the law recognizes as binding and valid, and is one that arises in the ordinary course of business between a bank and the person negotiating the same. In other words, any transaction, past, present, or future, which a maker of a note has with a bank himself by procuring the money therefrom, pledging or assigning a life insurance policy to secure the payment thereof to the bank is business arising in the ordinary course of business and is covered by the assignment.
The appellee here relies strongly on the case of St. Lucie County Bank Trust Co. v. Aylin, decided by this Court in 1927, and cited in 94 Fla. 528, 114 So. 438, 439, wherein a pledge to a bank was held to be limited to the payment of the obligation for which it was given as collateral and that in that case the bank could not go out and buy other obligations, payable to other persons, and apply that collateral to it, or apply other pre-existing obligations of the maker thereof to that particular collateral, this being contrary to the wording and intent of that particular collateral agreement. That case may be distinguished from the case at bar. We do not say that had the bank purchased these obligations of the plaintiff's decedent in this case on the open market or discounted them for any other holder or bank other than the plaintiff's decedent himself, or in other words, in handling them in the ordinary course of business for anyone but decedent himself, that this same ruling would have applied. When an individual receives proceeds from a bank for certain notes, checks, or other obligations, he is doing business with the bank and such obligations arise in the ordinary course of business and should thus be covered by the assignment involved in this particular case.
Accordingly, it is our opinion that the lower court properly applied the facts to the law and arrived at a fair and just determination of this matter, whereupon the judgment and order of the lower court be, and the same is hereby affirmed.
SEBRING, C.J., and CHAPMAN and ROBERTS, JJ., concur.