Southeast Foods, Inc. v. Penguin Frozen Foods

• Decision Date: 26 September 1967
• Docket Number: 66--1019,Nos. 66--988,s. 66--988
• Citation: 203 So.2d 39
• Parties: SOUTHEAST FOODS, INC., Appellant, v. PENGUIN FROZEN FOODS et al., Appellees. PENGUIN FROZEN FOODS et al., Appellants, v. NATIONAL FREEZERS, INC., et al., Appellees.
• Court: Florida District Court of Appeals

Page 39

203 So.2d 39

SOUTHEAST FOODS, INC., Appellant, v. PENGUIN FROZEN FOODS et al., Appellees.

PENGUIN FROZEN FOODS et al., Appellants, v. NATIONAL FREEZERS, INC., et al., Appellees.

Nos. 66--988, 66--1019.

District Court of Appeal of Florida, Third District.

Sept. 26, 1967.

Rehearing Denied Nov. 1, 1967.

Heiman & Crary, Myers, Kaplan & Porter, Miami, for National Freezer and Southeast Foods.

Fowler, White, Gillen, Humkey & Trenam and Harold L. Ward, Miami, for Penguin Frozen Foods.

Before PEARSON, BARKDULL and HENDRY, JJ.

HENDRY, Judge.

The plaintiff below, Penguin Frozen Foods, instituted suit against the defendants, Southeast Foods, Inc., and National Freezers, Inc., on the basis of a nonnegotiable warehouse receipt through which Penguin claimed ownership of some fifty-one thousand, nine hundred and twenty-five pounds of frozen shrimp. The trial court, sitting without a jury, rendered judgment in favor of Penguin as against Southeast; however, regarding that portion of the action against National, the trial court ruled against Penguin and in favor of National. Appeal No. 66--988 is an appeal by Southeast from that part of the final order which grants judgment in favor of Penguin against Southeast. Appeal No. 66--1019 is an appeal by Penguin from that portion of the final order granting judgment in favor of National.

In order to give a clear understanding of the complexity of the transactions and circumstances giving rise to the litigation below, we shall set out those particular paragraphs of the trial court's 'Finding of Fact' which are most relevant to the issues here on appeal.

'FINDINGS OF FACT'

'(c) That Penguin is in the business of buying and selling frozen shrimp from producers and/or importers thereof and selling the same to its customers, who are both wholesalers and retailers. On or about April of 1964, Penguin had furnished Marine Garden, Inc. (hereinafter called 'Marine Garden') with a letter of credit whereby, in the event Penguin and Marine Garden should agree upon sales of shrimp from the latter to the former, an expeditious means of payment from Penguin to Marine Garden might be effected; under the letter of credit, and for the purpose of protecting Penguin, payment to Marine Garden was conditioned upon presentment to the local bank in Miami of documents of title evidencing the vesting in Penguin of the title to the shrimp involved in any such transaction.

'(d) That with respect to the dealings and relationship between Marine Garden and Penguin, at all material times, there is no credible evidence that such relationship was anything other than vendorvendee; neither party exercised any control in respect to the business affairs of the other party; Penguin had no control over or voice in any shrimp purchased or acquired by Marine Garden that might thereafter be sold by Marine Garden to Penguin, nor did Marine Garden, subsequent to any such sale of shrimp by it to Penguin, exercise any control over Penguin's resale thereof to its own customers. There is no credible evidence to support any finding that with respect to any such resale by Penguin, in the event the same should have to be sold at a loss, Marine Garden would have been obliged to share in such loss; once Penguin acquired title to the shrimp by virtue of purchasing the same from Marine Garden, the latter thereafter had no interest of any nature in such shrimp.

'(e) On June 29, 1964, defendant Southeast owned or had the right to sell a quantity of shrimp stored with National; on that date Southeast, through two of its officers, Bailey and Creasman, entered into an agreement with Marine Garden, whose President was Ricardo Nevarez, whereby Marine Garden agreed to purchase a quantity of the aforesaid shrimp for a price of $54,717.25, and Southeast promised to sell the subject shrimp to Marine Garden for such amount.

'(f) That Southeast instructed National to issue a non-negotiable warehouse receipt in the name of Penguin; this National did, and the salient provisions of that receipt read as follows:

'Original-Non-Negotiable Warehouse Receipt

NATIONAL FREEZERS, INC.

'This is to certify that we have received from EX TR FR Marine Midland D.T. #60185 TR FR Southeast Foods, Inc. D.T. #60187 For

Date 6/29/64

Account of: PENGUIN FROZEN FOODS

120 LaSalle Street

Chicago, Illinois

'This receipt was delivered by National to defendant Southeast on Monday, June 29th, at or shortly after the issuance of the receipt, as aforesaid.

'(g) That on the following day, Tuesday, June 30, 1964, Southeast delivered said warehouse receipt to Nevarez, President of Marine Garden, said delivery being accomplished by Bailey and Creasman, officers of Southeast.

'(h) Bailey and Creasman, as representatives of Southeast, did not trust Nevarez and, in fact, testified that they were aware of his 'bad reputation' but, nevertheless, permitted Nevarez to have possession of the warehouse receipt, knowing that he could utilize said receipt to obtain cash from Penguin through the local bank on the basis of the letter of credit.

'(i) Bailey and Creasman, despite their knowledge that Nevarez could use said receipt to obtain payment from Penguin for the shrimp through a local bank, and notwithstanding their knowledge of Nevarez'a unsavory reputation, nevertheless, left Nevarez's office on the afternoon of June 30th and permitted Nevarez to retain in his possession the said receipt. Furthermore, at the close of business on June 30th, Creasman knew that all documents, including the receipt, had been delivered to a local bank for the purpose of obtaining payment and did nothing to safeguard the payment or protect the money, despite his knowledge of the bad reputation of Nevarez.

'(j) Penguin had no knowledge whatsoever of Southeast's involvement in the transaction until a time subsequent to the occurrences material to the issues of this proceeding and, at all times, believed that it was dealing solely with Marine Garden, as vendor of the shrimp to Penguin.

'(k) On the afternoon of June 30th, Penguin, for the purpose of verifying the quality of the shrimp, arranged for an inspection thereof by a local seafood dealer, Gorton's. National concedes that in purchases of this type, where the buyer is many miles distant from the scene of the transaction, such inspection is customary. Furthermore, on the afternoon of June 30th, Penguin, in order that it might immediately commence withdrawals of the shrimp from the warehouse for the purpose of beginning sales and distribution of same to its customers, telephoned National long-distance and inquired whether National then held the shrimp for Penguin's account, and National advised and instructed Penguin that the warehouse receipt had been issued in the name of Penguin.

'(1) On or about 11:30 o'clock a.m. Wednesday, July 1, 1964, Penguin, through First National Bank of Miami, pursuant to the letter of credit referred to herein, paid the sum of $47,973.07 in cash to an agent of Marine Garden, the delay in payment from the afternoon of June 30th to the morning of July 1...