Cic Leasing Corp. v. Dade Linen & Furniture Co., s. 72--744

• Decision Date: 01 May 1973
• Docket Number: Nos. 72--744,72--807 and 72--808,s. 72--744
• Citation: 279 So.2d 73
• Parties: CIC LEASING CORP., a New York corporation, Appellant, v. DADE LINEN AND FURNITURE CO., a Florida corporation, d/b/a Monarch Contract Interiors and Gerald Knauer, Appellees. Frank PHILLIPS, Appellant, v. CIC LEASING CORP., a New York corporation, Appellee. Stephen LUBOW, Appellant, v. CIC LEASING CORP., a New york corporation, Appellee.
• Court: Florida District Court of Appeals

Page 73

279 So.2d 73

CIC LEASING CORP., a New York corporation, Appellant, v. DADE LINEN AND FURNITURE CO., a Florida corporation, d/b/a Monarch Contract Interiors and Gerald Knauer, Appellees.

Frank PHILLIPS, Appellant, v. CIC LEASING CORP., a New York corporation, Appellee.

Stephen LUBOW, Appellant, v. CIC LEASING CORP., a New york corporation, Appellee.

Nos. 72--744, 72--807 and 72--808.

District Court of Appeal of Florida, Third District.

May 1, 1973.

Rehearing Denied July 3, 1973.

Smith, Mandler, Smith & Parker and Joe N. Unger, Miami Beach, for CIC Leasing Co.

Albert Wilensky, Miami, for Frank Phillips.

Michael Lipsky, Miami, for Stephen Lubow.

Dubbin, Schiff, Berkman & Dubbin and Ira Abrams, Miami, for Dade Linen and others.

Before BARKDULL, C.J., and HENDRY and HAVERFIELD, JJ.

HAVERFIELD, Judge.

These consolidated appeals involve the various defendants with regards to the issue of conversion. The lower court found defendant-appellees Dade Linen and Furniture Co. and Gerald Knauer not guilty of either fraud or conversion. The remaining defendants, including appellants Frank Phillips and Stephen Lubow, were adjudicated guilty of conversion. The salient facts are as follows.

In November 1969, defendant Dade Linen and Furniture Co. d/b/a Monarch Contract Interiors and its manager, defendant Gerald Knauer, entered into an agreement with defendant Warren Tremblay whereby Dade Linen would sell furniture for the price of $104,714.80 to Tremblay's companies, defendants Kilow, Inc. and D & W, Inc., and deliver it to his apartment building, the Chateau Orleans in West Palm Beach. Thereafter, as a result of financial difficulties on his part, Tremblay by agreement substituted defendant Tele-Lease Corporation as the purchaser of the furniture on the same terms and conditions that Tremblay had with Dade Linen. Tele-Lease then entered into a separate transaction with the plaintiff CIC Leasing Corp., whereby CIC was to purchase the furniture from Tele-Lease for $122,714.80, and CIC would in turn lease it to Tremblay's companies, Kilow and D & W corporations, for a sum in excess of $160,000. Upon the request of defendant Milton Hargis, a representative of Tele-Lease, Dade Linen prepared a schedule listing the items of furniture to be delivered at the undiscounted price. Tele-Lease retyped the schedule on its own invoice which then was presented to CIC for payment. Thereafter, CIC was informed that Dade Linen was the supplier and vendor of Tele-Lease and made out its check in payment for the furniture to Tele-Lease and Dade Linen as joint payees. On February 9, 1970 Gerald Knauer picked up the check and upon the request of Milton Hargis deposited it in Tele-Lease's account at the National Commerce Bank. The bank's president, defendant Frank Phillips (Tele-Lease's banker), typed the endorsement on the back of the check and had Knauer sign it. On February 11, 1970, Tremblay and defendant Stephen Lubow, the secretary of Tele-Lease, informed Dade Linen that they wished to cancel a portion of the order. At the closing on February 17, 1970 upon the insistence of Tremblay, Lubow and Phillips, an additional quantity of furniture also was cancelled. These cancellations were credited to Tele-Lease's account with Dade Linen. Prior to the closing in January, upon plaintiff CIC's request, Tremblay had signed a receipt acknowledging that all of the furniture on the original invoice in fact had been delivered. Subsequently, Kilow and D & W corporations defaulted on their leases with CIC and claimed they had not received the full quantity of furniture which had been ordered. CIC filed suit for fraud and conversion against Tele-Lease, Dade Linen, Kilow, D & W, Knauer, Tremblay, Lubow, Phillips, and Hargis. Defendant Hargis was not properly served with process and, therefore, the cause was dismissed without prejudice as to him. With the exception of Dade Linen and Kanuer, all the remaining defendants were adjudged guilty of conversion and the plaintiff, CIC, was awarded the sum of $24,057.50 in damages. These appeals followed.

Plaintiff-appellant, CIC Leasing Corporation, contends that the lower court erred in rendering judgment in favor of defendant-appellees Gerald Knauer and Dade Linen and Furniture Co. We disagree.

As stated above, Dade Linen and Furniture Company merely was the supplier of Tele-Lease Corporation and had no agreement with the plaintiff, CIC. The invoice plaintiff received was from Tele-Lease only, not Dade Linen. Plaintiff of its own accord made out the...