Andrews v. First Nat. Bank

• Decision Date: 25 May 1934
• Citation: 115 Fla. 67,155 So. 143
• Parties: ANDREWS v. FIRST NAT. BANK OF TAMPA.
• Court: Florida Supreme Court

155 So. 143

115 Fla. 67

ANDREWS v. FIRST NAT. BANK OF TAMPA.

Florida Supreme Court, Division B.

May 25, 1934

Error to Circuit Court, Hillsborough County; L. L. Parks, Judge.

Suit by George Andrews against the First National Bank of Tampa. Judgment for defendant, and plaintiff brings error.

Reversed and remanded.

COUNSEL Holland & Bevis and Gordon Petteway, all of Bartow, for plaintiff in error.

Taliaferro Morris & Carter, of Tampa, for defendant in error.

OPINION

BROWN Justice.

The plaintiff in error, George Andrews, plaintiff in the court below, brought suit against the defendant in error, the First National Bank of Tampa, and in his declaration alleged that:

'Heretofore on the 10th day of May, A. D. 1929, the plaintiff was the owner of a certain check bearing date May 10, 1929, in the sum of $1977.78, payable to the order of George Andrews, the plaintiff herein, drawn by one John H. Jeffries on Lake Alfred State Bank located at Lake Alfred, Florida, and on said date the plaintiff did endorse said check and deposit the same with the First State Bank of Winter Haven, located at Winter Haven, Florida, and that thereupon the First State Bank of Winter Haven did give the plaintiff provisional credit upon its books of account for the amount of said check and on the same day did endorse said check to order of any bank or banker and transmit the same together with other items in cash letter to the defendant. The First National Bank of Tampa, for collection and credit. That the said defendant upon receipt of the said check did credit the account of the First State Bank of Winter Haven with the amount of said check and other items so received and in due course did transmit said check, together with other items so received, for collection and credit to its correspondent, the Atlantic National Bank of Jacksonville, Florida, which latter bank did in due course forward the same to Lake Alfred State Bank, the drawee of said check, for payment; that the said Lake Alfred State Bank did receive said check on or about May 14, 1929, charged the same to the account of the said John H. Jeffries, marked it paid and did thereafter deliver it to the said John H. Jeffries; that the said Lake Alfred State Bank did on or about said May 14, 1929, remit the proceeds of said check to the said Atlantic National Bank of Jacksonville by its draft drawn on the Citizens Bank & Trust Company of Tampa, Florida.

'That on the 15th day of May, 1929, the Lake Alfred State Bank and the First State Bank of Winter Haven, being insolvent, suspended operations by virtue of an order of the State Banking Department of the State of Florida, and at that time the said First State Bank of Winter Haven did have a balance to its credit upon the books of account of the First National Bank of Tampa in an amount greater than the amount of said Jeffries' check.

'That said remittance draft on the Lake Alfred State Bank was not presented to the Citizens Bank & Trust Company of Tampa for payment until on or about the 16th day of May, 1929, at which time said draft was dishonored and payment refused because of the suspension of operations of the said Lake Alfred State Bank. That upon refusal of the said Citizens Bank & Trust Company to pay the remittance draft so drawn by Lake Alfred State Bank, the said Atlantic National Bank charged the amount of said Jeffries check back to the defendant, The First National Bank of Tampa, and said defendant bank did in turn and on or about May 16, 1929, charge the same back to the account of First State Bank of Winter Haven and on June 14, 1929, the Liquidator or Receiver of the said First State Bank of Winter Haven, did charge the same to the account of the plaintiff.

'That thereafter said Atlantic National Bank of Jacksonville did file with the Liquidator or Receiver of the Lake Alfred State Bank, a claim for the amount of said check, which claim was allowed as a preferred claim and the proceeds thereof remitted to said Atlantic National Bank of Jacksonville, which thereupon, on or about August 22, 1930, forwarded said proceeds to the defendant, The First National Bank of Tampa. That at the time the defendant, The First National Bank of Tampa, received the proceeds of said claim, the account of the First State Bank of Winter Haven with said defendant bank was overdrawn and the defendant bank did thereupon hold such proceeds and credit the amount thereof to the account of the First State Bank of Winter Haven in reduction of the over-draft aforesaid.

'That under the facts and circumstances aforesaid, the plaintiff was the owner of said check and the defendant was the plaintiff's agent for the purpose of collecting the amount thereof for the plaintiff; and that the proceeds so derived by the defendant from the collection of said check rightfully belongs to the plaintiff; and that the defendant wrongfully and without authority credited the same after such collection in reduction of its over-draft against the First State Bank of Winter Haven as aforesaid, and wrongfully and without authority withholds from the plaintiff, the true owner thereof, the proceeds so derived as aforesaid. That although due and proper demand has been made by the plaintiff upon the defendant for the payment of the amount of said check so collected as aforesaid, yet said defendant has failed and refused and still fails and refuses to pay to the plaintiff the amount of said check so collected as aforesaid.

'Wherefore the plaintiff brings this action and claims damages in the sum of $4,000.00.'

A demurrer to this declaration was overruled and the defendant filed several pleas, only the fourth, fifth, and sixth being material here. These pleas read as follows:

'4. That on and prior to May 15, 1929, it was the regular correspondent in Tampa, Florida, of First State Bank of Winter Haven, a State banking corporation now in liquidation hereinafter referred to as the Winter Haven Bank; that said Winter Haven Bank from time to time had balances to its credit with this defendant but that this defendant carried no balances or account on the books of said Winter Haven Bank; that from time to time during said period this defendant received items from said Winter Haven Bank with instructions to collect the same and credit its account with this defendant in the amount of the proceeds; that from time to time in regular course and custom of dealings between said banks, provisional credits were given by this defendant to said Winter Haven Bank prior to the actual collection of said items subject to final payment; that this defendant was not indebted to said Winter Haven Bank on the 15th day of May, 1929, or subsequent thereto in any amount whatsoever; that on the contrary, although credit balances appeared on its books in favor of said Winter Haven Bank on said May 15, 1929, such credit balances were mere provisional credits subject to final payment of items making up said credit; that said balances arose by the granting and extending by this defendant of provisional credit on its books for items sent to it by said Winter Haven Bank for collection and credit, but which had not then been collected; that subsequent to May 15, 1929, items which were so credited subject to final payment were returned to this defendant unpaid and that thereupon this defendant returned to said Winter Haven Bank items returned to it unpaid charging the amount thereof against the credit balances of said Winter Haven Bank; that the said credit balances were used up and exhausted by charging back to said Winter Haven Bank the items so returned to said Winter Haven Bank; that after the Jeffries' check was received from and credited to the account of said Winter Haven Bank by this defendant, endorsed as set forth in the declaration but before May 15, 1929, and before the same could be actually collected, said Winter Haven Bank withdrew from its said account funds in excess of said Jeffries' check; that this defendant either paid the said Winter Haven Bank the face amount of each and every item forwarded to it for collection and credit, or else returned to said Winter Haven Bank each and every item it did not pay, funds so paid being actually withdrawn by said Winter Haven Bank; that this defendant actually paid the Winter Haven Bank the amount of the Jeffries check prior to its collection and was without the use of the money so paid out and was not repaid and reimbursed for the advance so made by it to said Winter Haven Bank until during August of the year 1930, although the Winter Haven Bank had closed its doors on or about May 15th of the preceding year, on which said date it received the amount of the Jeffries check as a preferred claim, and that the said Winter Haven Bank, the plaintiff, and any one for whom said bank was acting have no claim against this defendant, any such claim having been paid and discharged as aforesaid.

'5. That on and prior to May 15, 1929, it was the regular correspondent in Tampa, Florida, of First State Bank of Winter Haven, a State banking corporation now in liquidation hereinafter referred to as the Winter Haven Bank; that said Winter Haven Bank from time to time had balances to its credit with this defendant but that this defendant carried no balances or account on the books of said Winter Haven bank; that from time to time during said period this defendant received items from said Winter Haven bank with instructions to collect the same and credit its account with this defendant in the amount of the proceeds; that from time to time in regular course and custom of dealings between said banks, provisional credits were given by this defendant to said Winter Haven bank prior to the actual collection of said items subject to final payment; that from time to...