Smith v. Urquhart

• Decision Date: 28 October 1937
• Citation: 129 Fla. 742,176 So. 787
• Parties: SMITH v. URQUHART.
• Court: Florida Supreme Court

176 So. 787

129 Fla. 742

SMITH v. URQUHART.

Florida Supreme Court, Division A.

October 28, 1937

Suit by James A. Urquhart against M. A. Smith, as liquidator of Merchants Bank & Trust Company. From a decree, defendant apeals.

Affirmed. Appeal from Circuit Court, Volusia County; J C. B. Koonce, judge.

COUNSEL

Horrell & Horrell, of Orlando, for appellant.

Paul W Harvey, of Daytona Beach, for appellee.

OPINION

BUFORD Justice.

The appeal brings for review decree as follows:

'1. That this Court has jurisdiction of the subject matter and the parties to this suit.

'2. That the rulings of the Court are noted in the Special Examiner's report in the handwriting of the Court, and the respective parties are allowed an exception to the rulings so made wherein they are adverse to said party.

'3. That the charge of the Special Examiner in the sum of $25.00 for his services rendered is approved.

'4. That the Merchants Bank and Trust Company as Trustee, on July 2nd, 1929, entered into a declaration of trust in favor of plaintiff wherein said bank as trustee acknowledged the receipt of $65,000.00; that on July 11th, 1929, said bank was open for business, that on the following day it did not open for business, and is now in liquidation under the direction and control of the State Banking Department of the State of Florida, and on August 19th 1929, J. W. Perkins was duly appointed liquidator of said bank and its affairs; that said J. W. Perkins as liquidator of said bank as trustee, entered into an agreement with plaintiff, referred to in examiner's report as 'Exhibit 1,' wherein said plaintiff agreed to accept certain time warrants of the face amount of $50,000.00 and $15,000.00 with interest to date of payment; that said proposed settlement was embodied in a petition by said J. W. Perkins as Liquidator of said bank as trustee, approved April 24th 1930 by Ernest Amos, then Comptroller of the State of Florida, and the Judge of the 7th Judicial Circuit having disqualified himself said settlement was approved by a court of competent jurisdiction; that said J. W. Perkins resigned as such Liquidator and on February 28th 1933, M. A. Smith was duly appointed, qualified and confirmed by order of Court as Liquidator of said bank, and being now the Liquidator of the same is estopped to question the terms or validity of said agreement filed and recorded by his predecessor in office, and this Court finds that plaintiff is a preferred creditor of said bank by virtue of said trust agreement and the agreement of settlement aforesaid, and has a preferred claim against said bank and said Liquidator for $15,000.00 with accrued interest at 6% per annum from July 2nd, 1929.

'5. That there has been paid preferred creditors of the same class as plaintiff's claim 75% of the principal sums of their respective claims; that plaintiff having a preferred claim against said bank and said Liquidator for $15,000.00, with accrued interest at 6% per annum from July 2nd, 1929, that M. A. Smith as Liquidator of Merchants Bank & Trust Company, a corporation, do, out of the assets of said bank forthwith pay to the plaintiff and his solicitor of record the sum of $11,250.00, with accrued interest at 6% per annum from July 2nd, 1929, together with the costs and charges of this suit paid by plaintiff herein taxed at $15.20, and also $25.00 for the Special Examiner's charges.'

The decree sets out the salient facts and shows them to be such that the appellant, liquidator of a state banking institution, is attempting to maintain a position other than the one which his predecessor in office maintained prior to the institution of this suit and pursuant to which a settlement between the parties was agreed upon and approved by a court of competent jurisdiction and in part executed.

It is well settled that 'a party is estopped to make the defense or objection inconsistent with the position previously asserted by him which position was successfully maintained.' Warren v. Warren, 73 Fla. 764, 75 So. 35, L.R.A.1917E, 490; 21 C.J. 1226, and cases cited.

It is also well settled that, 'Where an estoppel is operative as between the original parties to the transaction, it is also effective as to their privies in contract.' Marion Mortgage Co. v. Grennan, 106 Fla. 913, 143 So. 761, 765, 87 A.L.R. 1492.

It...