George G. Tapper Co. v. Bank of Fort Walton, B-57

• Court: Florida District Court of Appeals
• Writing for the Court: STURGIS; WIGGINTON, C. J., and CARROLL, DONALD
• Citation: George G. Tapper Co. v. Bank of Fort Walton, 117 So.2d 8 (Fla. App. 1959)
• Decision Date: 15 December 1959
• Docket Number: No. B-57,B-57
• Parties: GEORGE G. TAPPER COMPANY, INC., Appellant, v. BANK OF FORT WALTON, Appellee.

Page 8

117 So.2d 8

GEORGE G. TAPPER COMPANY, INC., Appellant, v. BANK OF FORT WALTON, Appellee.

No. B-57.

District Court of Appeal of Florida, First District.

Dec. 15, 1959.

Rehearing Denied Jan. 6, 1960.

Silas R. Stone, Port St. Joe, for appellant.

Fisher & Hepner, Pensacola, for appellee.

STURGIS, Judge.

The appellant, George G. Tapper Company, Inc., defendant below, seeks reversal of a final decree which, upon the theory of equitable assignment of certain funds, adjudged the appellant to be jointly and severally liable with Burkett-Howard, Inc., its codefendant which is not a party to this appeal, for the obligation of the latter as maker of three collaterally secured promissory notes in favor of the appellee, Bank of Fort Walton, plaintiff below. The collateral security was by way of an assignment to the bank of progress payments accruing to the maker of the notes under its subcontract to perform for George G. Tapper Company Inc., part of a contract for the construction of a sewer project for the City of Fort Walton Beach, Florida.

The essential facts are: On December 19, 1955, George G. Tapper Company, Inc. (identified herein as the 'Tapper Company') and Burkett-Howard, Inc. (identified herein as the 'Burkett-Howard Company') as joint venturers contracted to construct a sewer system for the City of Fort Walton Beach, Florida. After commencing work on the project, the joint venturers entered into a written agreement which, as between the immediate parties, 1) terminated their relation as joint venturers under the prime contract with the city and left the Tapper Company in the position of the sole prime contractor, 2) subcontracted a part of the project to the Burkett-Howard Company, 3) provided for monthly progress payments, based on monthly estimates, to be made by the Tapper Company to Burkett-Howard Company under the subcontract, and 4) contained the following provision upon which the appellant relies as affording to it a prior and superior interest in the estimates assigned by the Burkett-Howard Company to the appellee-bank:

'The sub-contractor * * * agrees to repay to the contractor, all expenditures and expenses incurred and chargeable to the prime contract since the said contract was let by the owner * * * which said sum the sub-contractor agrees to pay as follows: $2,000.00 upon execution of this sub-contract; $6,000.00 to be deducted from the January 1956 estimate and the balance to be deducted in equal installments from the February, March and April estimates.'

The term 'estimate' as used in the quoted provision clearly refers to the progress payments accruing to the subcontractor as elsewhere provided in the contract, a copy of which was filed in the office of the City Clerk at the City Hall in Fort Walton Beach.

After executing that agreement the Burkett-Howard Company approached the bank for a loan of money with which to meet its weekly payrolls on the subcontract, and thereunto procured the Tapper Company to deliver to the bank a letter, dated February 15, 1956, the body of which reads:

'Burkett-Howard, Incorporated are sub-contractors to us on the Fort Walton sewer extension system and has requested that I forward all estimates due them under our sub-contract to your bank to be credited to their account.

'I wish to advise that I will comply with their request and all such estimates due them based on their subcontract will be forwarded to your bank.'

The bank...