Turk v. St. Petersburg Bank & Trust Co., 72--619
| Decision Date | 25 July 1973 |
| Docket Number | No. 72--619,72--619 |
| Parties | 13 UCC Rep.Serv. 383 Irving TURK, Appellant, v. ST. PETERSBURG BANK AND TRUST COMPANY, a Florida banking corporation, Appellee. |
| Court | Florida District Court of Appeals |
Charles W. Pittman of Macfarlane, Ferguson, Allison & Kelly, Tampa, for appellant.
Charles Carrere of Harrison, Greene, Mann, Davenport, Rowe & Stanton, St. Petersburg, for appellee.
Irving Turk, the appellant, was sued by appellee, St. Petersburg Bank and Trust Company, to recover for a deficiency from Turk. The case was tried before a jury and the jury returned a verdict of $7,490 in favor of the bank. Proper post-trial motions were filed and denied and this appeal ensued.
Irving Turk, president of Bob King, Inc., obtained floor plan financing for automobiles which Bob King, Inc. was selling. Turk, Bob King and Bob King, Inc., executed a mote for $35,000 along with a security agreement, and the bank took certain automobiles belonging to Bob King, Inc. as security. The appellant Turk ceased to be active in the corporation during the existence of the agreement. However, prior to his separation from Bob King, Inc., Turk, along with Bob King, went back to the bank and sought to have the total obligation reduced to $20,000. They advised Mr. Applegate, the assistant vice president and loan officer, that they wished to reduce their liability to $20,000, the outstanding debt at that time being $8,000. Mr. Applegate agreed to this and had a new note in the amount of $20,000 prepared. The record reflects that Mr. Applegate advised Turk that the documentary stamps would be $30.00.
The appellant maintains, and from the record there is substantial evidence to support his allegation, that the first note was retained by the bank to show that documentary stamps had already been paid and that the $20,000 note was being substituted for the first note. Appellee urges that there was conflict as to this and he cites parts of the record in his brief to support this conflict. We, of course, have read the record, particularly that portion cited by appellee, and we simply do not find any conflict in the testimony. It is clear that Mr. Applegate agreed that the second note could be substituted for the first note and that by complying with F.S. § 201.09, F.S.A., further stamps would be unnecessary. While this specific statute was not discussed by either party at the conference, it was agreed by both Mr. Applegate and Mr. Turk that the purpose of retaining the $35,000 note was to avoid necessity of purchasing additional documentary stamps.
In any event, after the execution of the $20,000 note the bank continued to advance monies on the note until at one point in 1968 the indebtedness reached $36,336.00. The bank became concerned for its collateral and, after an investigation, sought to take action. They advised Bob King, Inc. that they were going to take possession of the automobiles and they did so. They then sold the automobiles for the sum of $17,881.52. The bank alleged that at the time of repossession the total outstanding indebtedness was $32,861.00 and sued Turk for $15,540.92 plus interest.
Appellant urges ten specific points why the jury verdict should be reversed. We will not attempt to answer all of the points individually; but we believe that the verdict should be reversed for at least two reasons. First, the court erred in allowing the $35,000 note to be introduced as evidence of liability. From the uncontroverted evidence, the $35,000 note was retained by the bank for the sole purpose of showing the purchase and affixing of documentary stamps so that the new $20,000 note should not again be stamped. That should have been the only reason for the admission of the $35,000 note.
Secondly, and more importantly, this transaction was governed by the Uniform Commercial Code, and particularly Section 679.504(3), which reads as follows:
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