Opinion
July 11, 1952. Rehearing Denied October 7, 1952.
Appeal from the Circuit Court, Dade County, Charles A. Carroll, Judge.
Godfrey K. Newman and Joseph A. Wanick, Miami Beach, for appellant.
Hope Root, Miami, for appellee.
This is a bill of interpleader and for declaratory judgment filed by the Mercantile National Bank against Michigan National Bank of Lansing, Michigan, Eugene Wermuth, Joe Bloom, and Robert Block, the latter doing business as "Check Service," and also Howard Sober, Inc. The plaintiff below paid into the registry of the court $7,500 asking that the defendants be required to interplead and settle between themselves their rights to this fund.
The facts as found by the Master, and as to which there is little dispute, are as follows:
That appellant, Robert Block, operated a check cashing agency at Miami Beach where for a fee he would use his credit at the bank to obtain special clearance on the checks of his customers; that Block had cashed a number of checks for Joe Bloom; that about March 28, 1948, Bloom presented the check in question to Block for Block to have it forwarded for collection. It was dated March 28, 1947, drawn by Howard Sober, Inc., by Howard Sober, President, on the Michigan National Bank for $7,500, and payable to Eugene Wermuth. The check bore the apparent endorsement of Wermuth, which endorsement appears to have been forged by Bloom. The check also was endorsed by Bloom.
Block called Bloom's attention to the fact that the check was about a year old. However, since Block was taking the check subject to collection he was not especially interested in this. Block did not know that Wermuth's signature on the check was a forgery.
Block took the check and forwarded it through the Mercantile National Bank to the National Bank of Michigan. When the check arrived at the National Bank of Michigan for payment, it developed that it had to be countersigned by one Wilken, who was the Comptroller of Howard Sober, Inc., before the National Bank of Michigan could honor it. The National Bank of Michigan advised Wilken of the fact that the check had been presented for payment, and Wilken countersigned it and the Michigan National Bank paid it. The funds reached the Mercantile National Bank, were credited to Block's account, and Block when so notified, paid Bloom, less Block's fee.
Sober, who was then in Miami, returned to Lansing in April 1948, and discovered that the check had been paid.
It then developed that the facts relative to the issuance of this check by Sober were that in the 1947 season, he was betting on the horse races in Miami with a firm of bookmakers composed of Wermuth, Bloom and one Levenson. Sober lost and gave this firm three checks, all drawn by him as president of Howard Sober, Inc., on the Michigan National Bank. The check now in question was the third of these checks. The other two were not paid by the Michigan National Bank because of lack of Wilken's signature. For this reason, the firm did not try to collect this check, but after negotiations with Sober it was arranged that Sober was to make a cash settlement. Sober by that time had returned to Michigan so he sent a certified check to a friend at Miami Beach in settlement for delivery to the bookmaking firm. This the friend did, but he did not get back the check in question.
Bloom had obtained the check, held it almost exactly a year, forged Wermuth's endorsement on it, and had presented it to Block to have Block collect it through Block's bank.
The lower court held that Howard Sober, Inc., was entitled to the $7,500 less certain cost items.
The check in question was not a valid instrument until it was countersigned by the Comptroller, Wilkens. He was a co-maker.
In Goodyear Tire Rubber Co. v. Wells Fargo Bank, 1 Cal.App.2d 694, 37 P.2d 483, 489, it is said: "It is common business practice for companies to require two persons to sign checks as a condition precedent to their validity. * * * Life is fused into the check by the one who finally signs."
Section 674.63, Florida Statutes 1951, F.S.A., provides: "The drawer by drawing the instrument admits the existence of the payee and his then capacity to indorse; and engages that on due presentment the instrument will be accepted or paid, or both, according to its tenor, * * *."
In addition to this it was the careless and irregular business methods of Howard Sober, as president of Howard Sober, Inc., that made it possible for Joe Bloom to secure the recovery on this check from Robert Block.
The decision of the lower court is reversed with directions that the money in the registry of the court be paid to the appellant Robert Block or his attorney of record, subject to costs as allowed by the court below.
SEBRING, C.J., and THOMAS and MATHEWS, JJ., concur.