Mcghee Interests, Inc. v. Alexander Nat. Bank
| Citation | 135 So. 545,102 Fla. 140 |
| Parties | McGHEE INTERESTS, Inc. v. ALEXANDER NAT. BANK et al. |
| Decision Date | 23 June 1931 |
| Court | United States State Supreme Court of Florida |
Suit by the Alexander National Bank against the McGhee Interests Inc., and others. From the decree, named defendant appeals.
Reversed and remanded. Appeal from Circuit Court, Pinellas County John U. Bird, judge.
Sutton Tillman & Reeves, of Tampa, for appellant.
Mabry, Reaves & Carlton, of Tampa, and Spear, Viney & Pearce, of St. Petersburg, for appellees.
This is an appeal from a final decree of the circuit court of Pinellas county, in chancery, construing an escrow agreement and ordering a distribution of the escrowed funds. The suit was brought by the Alexander National Bank, the escrow agent, against the McGhee Interests, Inc., a corporation, Bender-Nichols, Inc., a corporation, and R. W. Pillsbury, the parties for whom the bank acted as such agent. The court below found against Pillsbury, who took no appeal. The principal contentions urged here are therefore between the other parties.
The McGhee Interests, Inc., as owner, had made a contract with Bender-Nichols, Inc., as agent, dated September 24, 1924, whereby the agent was to sell a large area of land which was being subdivided and developed as urban property by the owner. For its services under the contract the agent was to receive 28 per cent. of the gross sales price of each lot, to be paid at the rate of 50 per cent. of the contract price of each sale as said price was paid in.
The agent, Bender-Nichols, Inc., operated under this contract until the spring of 1925, when differences arose between it and the developer, the McGhee Interests, Inc. These differences resulted in another contract between the same parties dated May 29, 1925. Briefly, this contract which was called an escrow agreement, provided that the Alexander National Bank should receive from the McGhee Interests, Inc., contracts of lot purchasers aggregating the unpaid amount of $291,764.13, and, as said contracts were paid, the bank was authorized to distribute the money between the McGhee Interests, Inc., and Bender-Nichols, Inc., until Bender-Nichols, Inc., had been paid $62,308.36, more or less, according to the terms of the contract.
The escrow agreement, together with an escrow letter dated May 26, 1925 (but intended to be dated May 29th), was deposited with the Alexander National Bank, and it is as to the interpretation of these last-mentioned documents that this appeal relates.
Under the original agreement between the parties, the Bender-Nichols, Inc., was to receive a total of 28 per cent. of the purchase price of each separate lot sold for the McGhee Interests, Inc. This 28 per cent. was provided to be paid out of moneys received from lot purchasers, 50 per cent. to go to the McGhee Interests, Inc., and 50 per cent. to go to Bender-Nichols, Inc., as the money came in from the lot purchasers, and to continue until the full amount of 28 per cent. commission was realized by Bender-Nichols, Inc., on each lot.
The contention of counsel for the McGhee Interests, Inc., in the court below was and is here to the effect that under the escrow agreement Bender-Nichols, Inc., was to continue to receive the identical participation provided for in the original sales agreement, that is, 50 per cent. of the moneys paid by each lot purchaser until 28 per cent. of the gross sales price of each contract had been paid to Bender-Nichols, Inc., as its commissions, at which time the interest of Bender-Nichols, Inc., should cease.
On the other hand, the contention of Bender-Nichols, Inc., and of the Alexander National Bank is that the escrow agreement changed the sales agreement, so that Bender-Nichols Inc., was no longer to be paid a part of the collection of each lot sold, but that contracts aggregating $291,764.13 were to be deposited in escrow, and that Bender-Nichols, Inc., was to receive 50 per cent. of the aggregate payments of all said contracts until it should be paid a definite amount agreed to be due it for all commissions earned on all the contracts. This definite amount is alleged to have been the sum of $62,308.36, mentioned in the escrow letter.
It appears from the evidence that the McGhee Interests, Inc., promptly objected to the last-mentioned interpretation placed on the agreement by the Alexander National Bank in favor of Bender-Nichols, Inc. This objection appears to have been repeated on more than one occasion to the officers of the Alexander National Bank, until it finally culminated in a formal letter of protest served on the bank by counsel for the McGhee Interests, Inc.
It is suggested in the pleadings and in the evidence submitted by the McGhee Interests, Inc., that the Alexander National Bank was not altogether disinterested in making the interpretation it did of the contract between the McGhee Interests, Inc., and Bender-Nichols, Inc., because of the fact that Bender-Nichols, Inc., was indebted to the bank, which indebtedness was being in part paid by the commissions which the bank received and credited to the account of Bender-Nichols, Inc. It was also established by the evidence that the same attorney who advised the course of conduct for the bank to pursue in favor of Bender-Nichols, Inc., at one time represented Bender-Nichols, Inc., in connection with the same transaction, although it appears that such attorney retired from any connection with Bender-Nichols, Inc., when it appeared that its interests and that of the bank were about to come into conflict, said attorney being a director of the bank as well as its legal advisor.
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