Opinion
December 7, 1951.
Appeal from the Circuit Court for Okaloosa County, D. Stuart Gillis, J.
Thomas Sale, Panama City, for appellant.
Joseph I. Mathis, Panama City, for Central Surety Insurance Corp.
Adams Wade, Crestview, for Board of Public Instruction of Okaloosa County.
It appears by the record in this cause that Andy C. McNeil Company, on August 15, 1949, entered into a contract with the Board of Public Instruction of Okaloosa County, at Crestview, Florida, to build an addition to Norwood School. The total amount of the contract was $44,905.50. The Central Surety and Insurance Corporation signed a performance bond in behalf of McNeil to protect the School Board on the contract. The construction was completed on the 8th day of February, 1950, and remaining amount due by the School Board to Andy C. McNeil Company on the contract was the sum of $4,535.30.
On November 2, 1949, Andy C. McNeil Company transferred and assigned to the Commercial Bank in Panama City all funds due it by the School Board of Okaloosa County. The assignment is viz.:
"Board of Public Instruction of Okaloosa County Crestview, Florida.
"For value received, we hereby sell, assign, transfer and set over unto Commercial Bank in Panama City such funds as may be due us from time to time after this date on that certain contract between ourselves and the Board of Public Instruction of Okaloosa County, Florida, covering work on No orwood School Addition Job No. 4906A.
"Andy C. McNeil Company "By Andy C. McNeil "Owner."
On the bottom of this assignment it will be noted that it was approved by the School Board, by its Superintendent, Lance C. Richbourg, for on this assignment was written:
"Approved "Lance C. Richbourg "Superintendent Board of Public Instruction of Okaloosa County"
The application and agreement of indemnity entered into on August 15, 1949, between Andy C. McNeil Company and the Central Surety and Insurance Corporation contained a provision which conveyed and assigned unto the Surety Corporation "any and all payments, funds, money or property due or to become due to applicant (Andy C. McNeil Company) as provided in said contract." Andy C. McNeil Company defaulted in the payment of accounts for labor, materials, and subcontractors employed in the completion of the addition to the Norwood School and Andy C. McNeil Company requested the Surety Corporation to pay the same. Pursuant to the request and in compliance with its contractual relation, the Surety Corporation determined that the several accounts and claims were valid, and, according to its indemnity agreement, paid Andy C. McNeil Company's accounts and claims in the sum of $11,032.26. The Surety Corporation, after payment of said accounts and claims in behalf of Andy C. McNeil Company, contended that it was, as a matter of law, subrogated and entitled to the balance due under the building contract with the School Board.
The Board of Public Instruction of Okaloosa County filed in the Circuit Court its bill of interpleader and alleged that it was an innocent stakeholder in the sum of $4,535.30 and prayed for an order requiring the Commercial Bank in Panama City and the Central Surety and Insurance Corporation to interplead so that these conflicting demands and claims as to the balance due under the contract be adjudicated by an appropriate decree of the Circuit Court of Okaloosa County. The Chancellor below entered an appropriate order and answers were filed, testimony taken and on final hearing a decree was entered holding and directing that the School Board pay the balance due on the building contract in the sum of $4,535.30 to the Central Surety and Insurance Company. The Commercial Bank in Panama City appealed.
Counsel for appellant contends that the Chancellor erred in holding or concluding that the School Board of Okaloosa County was an innocent stakeholder, as it affirmatively appeared by the record that the Commercial Bank, by an appropriate assignment, became the owner of "all money" then in possession of the School Board due McNeil under the construction contract. It is further argued that the money advanced by the bank to McNeil was used in payment of labor and materials for the construction of the school building. The assignment to the bank was dated November 2, 1949. The McNeil Company had on a previous date, to wit, August 15, 1949, obligated itself by contract to pay the balance due under the construction contract to the Central Surety and Insurance Corporation. The following authorities are cited by counsel: Florida East Coast Ry. Co. v. Eno, 99 Fla. 887, 128 So. 622, 70 A.L.R. 506; Kehl v. Miami Title Abstract Co., 143 Fla. 9, 196 So. 610; Paul v. Harold Davis, Inc., 155 Fla. 538, 20 So.2d 795; Town of River Junction v. Maryland Casualty Co., 5 Cir., 110 F.2d 278.
We have carefully examined the authorities cited by counsel and it is our view and conclusion that the following authorities are decisive of this controversy: Union Indemnity Co. v. City of New Smyrna, 100 Fla. 980, 130 So. 453; Florida East Coast Ry. Co. v. Eno, 99 Fla. 887, 128 So. 622, 70 A.L.R. 506; Phifer State Bank v. Detroit Fidelity Surety Co., 97 Fla. 538, 121 So. 571.
The decree of the lower Court is affirmed.
SEBRING, C.J., and THOMAS and HOBSON, JJ., concur.