This case has made its appearance here before in County of Okeechobee v. Florida National Bank, 112 Fla. 309, 150 So. 124, and in Florida National Bank v. County of Okeechobee,117 Fla. 262, 157 So. 570. Another phase of litigation predicated on this same transaction made *Page 498 its appearance here in Carlton, Governor, for Use and Benefit of Okeechobee County v. Detroit Fidelity Surety Co., 112 Fla. 644, 151 So. 328.
On April 10, 1927, the Florida National Bank of Jacksonville, the Peoples Bank of Okeechobee and the Board of County Commissioners of Okeechobee County entered into the following contract:
"This agreement entered into this 10th day of April, A.D. 1927, by and between Florida National Bank of Jacksonville, Florida, Peoples Bank of Okeechobee, Florida, and Board of County Commissioners of Okeechobee County, Florida, has for its purpose the following:
"In consideration of the loan to the People's Bank of Okeechobee by the Florida National Bank of Jacksonville of $300,000.00 of obligations of the United States of America, and other bonds as represented by Custodian's Receipts Nos. 1424, for $28,000.00, 4010 for $50,000, 4113 for $10,000, 4142 for $100,000 and 4143 for $75,000, 4150 for $25,000, and 4151 for $25,000 of the Jacksonville Branch of the Federal Reserve Bank of Atlanta, Georgia, assigned to the Board of County Commissioners of Okeechobee County, the Peoples Bank of Okeechobee has directed that the proceeds of the Okeechobee County Road No. 29 Bond Issue amounting to approximately $500,000.00 be deposited with the Florida National Bank of Jacksonville, in an account designated 'Peoples Bank of Okeechobee.' It is understood that the bonds referred to are to secure the aforesaid deposit and said funds so deposited are to be withdrawn from the Florida Bank of Jacksonville, by the Peoples Bank of Okeechobee, or to be withdrawn by the County Commissioners of Okeechobee County, from the Peoples Bank of Okeechobee, only upon surrender by the Board of County Commissioners of Okeechobee County, to the Florida National Bank of Jacksonville, through the *Page 499 Peoples Bank of Okeechobee, of the Custodian's Receipts in the following manner:
"None of said Custodian's Receipts shall be released by said Board of County Commissioners until the aforesaid deposit with the Florida National Bank of Jacksonville has been reduced, by withdrawals therefrom by the Peoples Bank of Okeechobee, to a sum equal to the face value of all said Custodian's Receipts ($300,000.00). Thereafter the said Custodian's Receipts shall be surrendered and released by the Board of County Commissioners of Okeechobee County, through the Peoples Bank of Okeechobee, to the Florida National Bank of Jacksonville, in blocks of $50,000.00 face value. When the deposit described herein has been reduced to $300,000.00, $50,000.00 of the Custodian's Receipts shall be released. When the deposit has been reduced to $250,000.00, $50,000.00 of the Custodian's Receipts shall be released. When the deposit has been reduced to $200,000.00, $50,000.00 of the Custodian's Receipts shall be released. When the deposit has been reduced to $150,000.00, $50,000.00 of the Custodian's Receipts shall be released. When the deposit has been reduced to $100,000.00, $50,000.00 of the Custodian's Receipts shall be released. When the deposit has been reduced to $50,000.00 the remainder of the Custodian's Receipts shall be released as prescribed herein by the Board of County Commissioners of Okeechobee County to the Florida National Bank of Jacksonville through the Peoples Bank of Okeechobee.
"It is agreed between the parties hereto that the Custodian's Receipts referred to herein shall be kept in a vault for safekeeping, preferably in a lock box on which two keys are required to open, and it is further understood that in the event all or any portion of said Custodian's Receipts are lost or misappropriated by the officials to whom they are delivered by the Peoples Bank of Okeechobee, then the *Page 500 Florida National Bank of Jacksonville shall deduct from the said deposit a sum equivalent to the par value of such said Custodian's Receipts as are so lost or misappropriated."
The contract was signed by representatives of all three parties thereto and attested by the clerk of the court.
In 1926 the people of Okeechobee County voted in favor of issuing $525,000.00 of bonds for the purpose of widening, reconstructing, grading and hard-surfacing the Okeechobee-Fort Drum road, State Road No. 29. The bonds were issued and sold for $95.07 plus accrued interest to date of delivery, making an aggregate total of $503,580.00. But the Florida National Bank was unable to collect on $25,000.00 of the bonds and returned them to the Peoples Bank of Okeechobee. Thereafter the Legislature enacted Chapter 13178, Acts of 1927, which after providing for abolition of the Board of Bond Trustees of Okeechobee County contained the following provisions for disposition of funds held by them:
"Sec. 2. That all Boards of Bond Trustees in Okeechobee County, Florida, heretofore appointed in connection with the issuance of County Bonds are hereby authorized and directed to pay to the Bank in Okeechobee County qualified as depository for County Funds, all moneys and all funds entrusted to, or held by, said Bond Trustees in connection with any and all bonds heretofore issued by the County of Okeechobee, said funds to be paid over to said County Depository on or before July 1st, A.D. 1927. . . .
"Sec. 4. That the proceeds of the sale of all County Bonds and of all Special Road and Bridge District Bonds hereafter issued in Okeechobee County, Florida, and the interest and sinking fund therefor shall be deposited in banks in Okeechobee County, Florida, qualified as County Depositories, and said funds dispersed as now provided, or as may be hereafter provided by general law governing the handling of County funds other than bond funds." *Page 501
The Act was approved April 12, 1927.
The proceeds of the bond sale were then placed in the Peoples Bank of Okeechobee, which had theretofore been designated as a county depository for the year 1927. The tri-partite agreement had been entered into on April 10, 1927, and the proceeds of the bond sale were handled to that agreement. After the parties had been operating under said agreement for over two years, the Peoples Bank of Okeechobee was closed by order of the State Comptroller, while there remained unexpended in said fund in the Peoples Bank of Okeechobee the sum of $91,361.54; and while there was a balance to the credit of Peoples Bank of Okeechobee in the Florida National Bank of $19,955.19. On August 1, 1939, the Florida National Bank paid to the Receiver of the Peoples Bank of Okeechobee $9,955.19. On August 10, 1929, the remaining $10,000.00 of securities were turned over to the Receivers of the Peoples Bank of Okeechobee by the Clerk of the Board of County Commissioners, and by the Receivers delivered to the Florida National Bank, and $10,000.00 was paid by the Florida National Bank to the Receivers of the Peoples Bank.
On August 27, 1931, the Board of County Commissioners of Okeechobee County brought their bill of complaint against the Florida National Bank of Jacksonville and the liquidator of the Peoples Bank of Okeechobee, praying that the court construe the trust agreement of April 10, 1927, and determine the rights of the parties; that the court find that the $50,000.00 of securities pledged by said trust agreement and withdrawn on March 16, 1929, as well as the $50,000.00 in securities withdrawn on May 6, 1929, were improperly withdrawn and that they or their value be returned to plaintiffs; that the court find that the Florida National Bank is indebted to Okeechobee County not only for the principal amount of said sum but also for interest *Page 502 from June 5, 1929; that defendants make full discovery of the records relating to transactions alleged in the bill; that the court enforce the trust relationship against the defendants; and that the court award the plaintiffs such other and further relief as the circumstances may develop to be equitable and as to the court will seem equitable.
The Florida National Bank of Jacksonville and the liquidator of the Peoples Bank of Okeechobee each filed a separate motion to dismiss. The chancellor entered his order dismissing the bill as to the Florida National Bank because it did not waive its privilege of being sued in Duval County by tiling a general appearance; and because the provisions of the Federal statute, 12 U.S.C.A. 94, are mandatory and not permissive.
On appeal here the order of the chancellor was reversed because both Florida National Bank and Peoples Bank were indispensable parties to the suit and the suit could have been properly begun either in Duval County or Okeechobee County. It was likewise pointed out that the county commissioners do not have authority to contract outside the county, and the Florida National Bank by contracting with these parties waived the right to be sued in Duval County. See County of Okeechobee v. Florida National Bank, 112 Fla. 309, 150 So. 124.
Thereafter the Florida National Bank filed its motion to dismiss, embodying other grounds, and its motion for better particulars. On December 28, 1933, the chancellor denied both motions and allowed defendant until January 18, 1934, in which to answer the bill of complaint.
On appeal here, the order of the Chancellor in this regard was affirmed. See Florida National Bank v. County of Okeechobee, 117 Fla. 202, 157 So. 570.
Thereafter, the defendant, Florida National Bank, filed its answer to the bill, which after answering the allegations *Page 503 of the bill, set up as affirmative defenses, (1) restitution, (2) performance by payment, (3) that the last $50,000.00 of bond funds were not to be secured and (4) equitable estoppel.
A motion to strike portions of the answer was granted in part and denied in part.
After the chancellor overruled the motion of the liquidator of the Peoples Bank of Okeechobee to dismiss the bill of complaint, with leave to answer within ten days, the liquidator answered the bill of complaint.
Counsel for the respective parties stipulated on the record as to many of the facts involved in the controversy, among which are the following:
"12. The proceeds of the sale of State Road No. 29 Bonds deposited as aforesaid, were carried by the County of Okeechobee in a checking account in the Peoples Bank of Okeechobee to the credit of said County, and the Peoples Bank of Okeechobee in turn carried a portion of the proceeds of the sale of said bonds in a checking account in the Florida National Bank of Jacksonville to the credit of the Peoples Bank of Okeechobee.
"13. By reason of the lack of even denominations, The Florida National Bank of Jacksonville actually delivered to Peoples Bank of Okeechobee, who in turn delivered to the County of Okeechobee, $313,000.00 of securities, which securities were represented by safekeeping receipts issued by the Federal Reserve Bank of Atlanta, Georgia, Jacksonville Branch. Through substitutions made of certain receipts, the aggregate amount of securities was prior to July 3, 1928, reduced from $313,000.00 to $310,000.00. Said securities or safekeeping receipts were thereafter released as follows: . . .
"(5) On March 16, 1929, $50,000.00 of said securities were manually turned over by the Clerk of the Board of *Page 504 County Commissioners of the County of Okeechobee pursuant to resolution of the Board of County Commissioners thereof, to the Peoples Bank of Okeechobee, and by the latter in turn forwarded to the Jacksonville Branch of the Federal Reserve Bank and by the latter in turn delivered to the Florida National Bank of Jacksonville. That at the time of the surrender of said securities State Road No. 29 bond account to the credit of the County in Peoples Bank of Okeechobee, showed a balance of $169,573.54.
"At the time of the release of the securities last mentioned, the balance on deposit in the Florida National Bank to the credit of Peoples Bank of Okeechobee, had been reduced by withdrawals by the Peoples Bank of Okeechobee to the sum of $163,829.88, which balance consisted not only of a portion of the proceeds of the sale of said bonds, but of various other moneys deposited from time to time in the regular course of banking business in the Florida National Bank by Peoples Bank of Okeechobee.
"(6) On May 6, 1929, $50,000.00 of said securities were manually turned over by the Clerk of the Board of County Commissioners of the County of Okeechobee, pursuant to the resolution adopted by the three County Commissioners attending the meeting held at 5:45 P. M. on May 6, 1939, hereinafter set out in paragraph 23 hereof, to the Peoples Bank of Okeechobee by the Clerk, and were by the Peoples Bank of Okeechobee in turn delivered to the Florida National Bank of Jacksonville. At the time of the surrender of said securities State Road No. 27 bond account to the credit of the County in Peoples Bank of Okeechobee showed a balance of $108,432.97.
"At the time of the release of the securities last mentioned, the balance on deposit in the Florida National Bank to the credit of Peoples Bank of Okeechobee, had been reduced by withdrawals by the Peoples Bank of Okeechobee to the sum *Page 505 of $139,855.90, which balance consisted not only of a portion of the proceeds of the sale of said bonds, but of various other moneys deposited from time to time in the regular course of banking business in The Florida National Bank by Peoples Bank of Okeechobee.
"(7) At the time Peoples Bank of Okeechobee closed on or about June 5, 1929, State Road No. 29 bond account to the credit of the County in said Peoples Bank, showed a balance of $91,361.54.
"At the time of the closing of said Peoples Bank, the balance on deposit in the Florida National Bank to the credit of Peoples Bank of Okeechobee had been reduced by withdrawals by the Peoples Bank of Okeechobee to the sum of $19,955.19, which balance consisted not only of a portion of the proceeds of the sale of said bonds, but of various other moneys deposited from time to time in the regular course of banking business in The Florida National Bank by the Peoples Bank of Okeechobee. Of said balance, the sum of $9,955.19 was thereafter, on August 1, 1929, paid over by the Florida National Bank of Jacksonville to the Receivers of the Peoples Bank of Okeechobee.
"(8) On or about August 10, 1929, the remaining $10,000.00 of said securities were manually turned over by the Clerk of the Board of County Commissioners of the County of Okeechobee to the Receivers of Peoples Bank of Okeechobee and by the latter in turn delivered to The Florida National Bank of Jacksonville, at which time the remainder of the deposit in The Florida National Bank to the credit of Peoples Bank of Okeechobee, to-wit, the sum of $10,000.00 was paid over by said The Florida National Bank to the Receivers of said Peoples Bank of Okeechobee, and by said Receivers in turn paid to said County.
"That on August 10, 1929, the account of the Peoples Bank of Okeechobee, with the Florida National Bank, was *Page 506 finally closed and from and since August 10, 1929, the said The Florida National Baik has not had and does not now have any money, funds, credits or deposits of any nature or kind whatsoever, theretofore received from said Peoples Bank of Okeechobee." . . .
"(10) That the respective balances to the credit of County of Okeechobee in the Peoples Bank of Okeechobee, in said Road No. 29 bond account, set forth in subparagraphs (1), (2), (3), (4), (5), (6) and (7) above, are ascertained by adding to the original deposit of $503,580.00 made by the County in said Peoples Bank on March 21, 1927, the aforesaid additional deposit thereto made by the County on June 1, 1928, in the sum of $31,500.00, and also the aforesaid additional deposit thereto made by the County on December 31, 1928, in the sum of $2,439.50 and deducting from the total of said amounts the County Warrants drawn against said deposit (shown in detail in paragraph 32 of this stipulation) and paid by said Peoples Bank of Okeechobee.
"That said additional deposit of $31,500.00 to said account was made under the following circumstances:
In May, 1927, the County Commissioners of Okeechobee County withdrew from said account by their Warrant No. 718 the sum of $15,789.33, ($15,750.00 thereof being interest on State Road No. 29 Bonds and $39.33 being fees to the paying agent) and again in November, 1927, said County Commissioners withdrew from said account by their Warrant No. 795, the sum of $15,789.37 ($15,750.00 thereof being interest on State Road No. 29 Bonds and $39.37 being fees to the paying agent), making a total withdrawn from said account of $31,578.70.
"On June 1, 1928, said County Commissioners deposited to said account said sum of $31,500.00 by their Warrant drawn against another account in said Peoples Bank of *Page 507 Okeechobee comprising the proceeds of $98,000.00 of refunding bonds issued in the year 1928 (said refunding bonds not being issued in refunding said State Road No. 29 bonds).
"That said additional deposit of $2,439.50 to said account was made under the following circumstances:
"Same was a credit to said account given by said Peoples Bank of Okeechobee to said County of Okeechobee for interest upon said account." . . .
"22. On May 6th, A.D. 1929, the Board of County Commissioners of Okeechobee County, Florida, met in regular monthly session at 10 A. M., the minutes of which meeting disclose the following (Quoting from Minutes.):
" 'Mr. D.R. McNeill appeared before the Board and asked for the release of a $50,000.00 block of bonds as security on Road 29 Bond fund, which was discussed by the Board and as this fund showed a balance of approximately $91,000.00 after deducting warrants authorized at the present meeting and bonds held as security totaling only $60,000.00 this request was tabled and carried over to the regular meeting in June. On Motion the Board adjourned.'
"23. Thereafter, on May 6th, A.D. 1929, at 5:45 P. M. three members of said Board, without notice to the other members of said Board, held a meeting, the minutes of which meeting disclose the following (Quoting from Minutes, May 6, 1929):
" 'The Board of County Commissioners was called to order by the Chairman May 6th, A.D. 1929, at 5:45 P. M. Present Chairman Potter, Commissioners Bass and Hair, J.L. Barber, Clerk. The following resolution was presented by Commissioner Hair, who moved its adoption and upon being seconded by Commissioner Bass and all members *Page 508 present voting AYE, was unanimously passed and adopted in regular open session:
" 'RESOLUTION " 'Whereas, the credit balance of State Road 29 funds have decreased to a figure entitling the depository to a release of fifty thousand dollars of the Bonded securities, and
" 'Whereas, by May 15th, 1929, the said depository will have paid a sum from the said 29 funds sufficient to entitle said depository to the balance of said bonded securities in an amount to ten thousand dollars,
" 'Now, Therefore, Be It Resolved that the Board of County Commissioners, through its Chairman, release to the depository the balance of the bonded securities, in the amount of sixty thousand dollars, now held by the said Board, and that the Chairman be, and he is hereby authorized to execute the proper release and deliver same to the said depository.
" 'Passed and adopted in regular and open session of the Board of County Commissioners of Okeechobee County, Florida, this Sixth day of May, A.D. 1929.
" 'W.W. Potter, Chairman " 'Q.J. Bass " 'S.A. Hair " 'Commissioners.
" 'On Motion the Board adjourned.' "
In the case of Carlton, Governor, for Use and Benefit of Okeechobee County, v. Detroit Fidelity Surety Co., 112 Fla. 644, 151 So. 328, we held that for the Commissioners to vote for withdrawal of securities in violation of the contract agreement was a breach of official duty, for which both they and the sureties on their official bonds are liable.
After testimony was taken before the special master the *Page 509 chancellor entered final decree in the cause, which, after reciting the facts, contained the following:
"The case has been before the Supreme Court of Florida on two occasions, and the decisions rendered therein appear at150 So. 124 and 157 So. 570. In the latter the Court held that the Florida National Blank of Jacksonville was acting without authority in entering into the contract, and that the liability, if any, of each bank should be determined on the issue and proof. The Court did not, however, determine that there was any liability on the part of either bank.
"This court is of the opinion that the complainants have proven the allegations of the bill of complaint and that the defense of the defendant, the Florida National Bank of Jacksonville, appearing in paragraph XXXVI of the answer has been established by proof also. Inasmuch as the complainants stand on the tri-party agreement, and keeping in mind the ruling of the Supreme Court, this court feels that there was no responsibility on the part of the Florida National Bank for Fifty Thousand Dollars of the remainder because when the deposit reached that sum all securities were to be returned to it. It is shown in the evidence that during the course of dealing between the two banks $33,939.50 was withdrawn from the proceeds of the bond issue for Road No. 29 and that subsequently the Board of County Commissioners redeposited this sum from another account with the Peoples Bank of Okeechobee. The Court understands that in fixing the amounts of balance due from time to time this sum was included. The Florida National Bank of Jacksonville had no control over the manner in which the moneys were expended, therefore, it does not seem that this institution should be held responsible for additional sums placed from other accounts into Road No. 29 Bond Fund subsequent to the execution of the tri-party *Page 510 agreement. The total of their re-deposits, the amounts paid by the Florida National Bank of Jacksonville to the Receivers and the Fifty Thousand Dollars to which reference is made above, is more than the deposit in the Peoples Bank of Okeechobee at the time it closed.
"In all these circumstances this court feels that the Complainants can have relief only against the Peoples Bank of Okeechobee, and the fact that that bank has closed is not justification for fixing the full liability against the Florida National Bank of Jacksonville. It should be borne in mind that the Florida National Bank of Jacksonville is a banking institution with headquarters in Jacksonville, Florida, and that the two other parties to the tri-party agreement were the County and a banking institution located at the county seat; that from time to time withdrawals were made by the Board of County Commissioners and securities released by them, through the resident bank; that the Florida National Bank did not participate in the negotiations with the Board of County Commissioners of May 6th, 1929; that the Board of County Commissioners filed its claim with the receivers of the Peoples Bank for the balance in the State Road No. 29 Bond Fund, and that the Supreme Court has held that the original contract wasultra vires.
"The circumstances above related should be given great weight in a court of equity, and the court feels that to fix responsibility on the Florida National Bank for the amount of the deposit in the Peoples Bank of Okeechobee at the time it closed would work an injustice.
"With regards to the responsibility of the Peoples Bank of Okeechobee, the court feels that the said Peoples Bank of Okeechobee is liable for the closing balance referred to, $81,361.54, and that the only question remaining to be determined now is whether or not the claim which was filed by the County with the Peoples Bank of Okeechobee is a *Page 511 common or preferred claim. This court retains jurisdiction of this cause with regards to that single issue.
"The Bill of Complaint is therefore dismissed as to The Florida National Bank of Jacksonville at the costs of Complainants and without prejudice to any rights the Complainants may have against the Peoples Bank of Okeechobee."
From this final decree appeal was taken.
The first question presented is whether or not the chancellor should have eliminated from consideration the additional deposits of $31,500.00 and $2,439.50, or whether such deposits should have been included in computing the amount due the County of Okeechobee.
The stipulation of the parties quoted above states in effect that $31,578.70 was withdrawn from State Road No. 29 bond fund to pay interest on State Road No. 29 bonds and fees to the paying agents, the withdrawals taking place in May and November, 1927, and in June, 1928, $31,500.00 was redeposited in the State Road No. 29 bond fund.
Mr. J.L. Barber, clerk of the circuit court, gave the following testimony as to the withdrawals and redeposit of the $31,500.00:
"Q. Now referring you to the photostat of the 'Statement of Receipts and Disbursements of the February 1st, 1927, Road Bond Fund, known as Road Twenty-Nine Bond Fund, issue of February 1st, 1927, $525,000.00 Okeechobee County, Florida, copy of which has been attached to the stipulation, — I will ask you to point out to the gentlemen representing the bank and mark with a pencil so it can be found later on this photostat, the two entries, withdrawals, for interest which was paid on this $31,500.00, and the entry showing this transfer so you can explain how it came up.
"A. One entry of May 30th, 1927, for $15,789.33; mark an 'X' after it. *Page 512
"Q. What's the other entry?
"A. One entry of November 28th, 1927, for $15,789.37; mark an 'X' after it.
"Q. Those were withdrawals from that Road Bond Fund, were they?
"A. Yes, sir.
"Q. What were those withdrawals for?
"A. Withdrawals for six per cent interest.
"Q. On what?
"A. Road Twenty-nine Bond Fund.
"Q. Was that done pursuant to order of the Board?
"A. Yes, sir. I suppose it was, it was before my time as Clerk.
"Q. Refer to the item, $31,500.00 showing a deposit in that fund. That deposit seems to be dated June 1st, 1928.
"A. Repayment of interest, $31,500.00.
"Q. Mark it. (Witness marking entry with pencil.)
"Q. Explain why the difference of a very small amount in those two withdrawals above.
"A. It is customary to charge a fee for handling and in this case it was evidently 35 cents and 37 cents.
"Q. The repayment is complete, except for those two particular charges?
"A. Yes, sir.
"Q. I understand then that the County repaid the Road Bond Fund $31,500.00 for two withdrawals, which they regarded as temporary, to pay interest on those bonds?
"A. Yes, sir.
"Q. Ordinarily what was the interest on those bonds paid from, from those bonds or taxes?
"A. From taxes. *Page 513
"Q. The interest came due before you had the taxes to pay it?
"A. Yes, sir.
"Q. They were withdrawals out of the fund and you repaid with the fund?
"A. Yes, sir."
It appears that the $31,500.00, deposit of June, 1928, was properly credited to the bond fund of State Road No. 29, because it had been previously borrowed by the county to pay interest on the bonds, which interest was usually paid from taxes, and when the taxes came in the bond fund was repaid the amount that had been borrowed to pay interest. It cannot be said that either bank escaped liability for this item of $31,500.00 merely because a loan had been made from the bond fund for a short period, until sufficient amount of taxes had been collected to repay it.
The item of $2,437.50 credited to the bond fund account was interest paid the fund for maintaining a stated balance for a given period of time. Claude E. Simmons, former clerk of the circuit court, gave the following testimony as to this item:
"Q. Mr. Simmons, there are two items here concerning which you can probably help us. There is an item of deposit in this bond fund of the sum of $2,439.50.
"A. What date was that deposited?
"Q. About December 31st, 1928. I will tell you exactly in just a minute. It is shown here on photostat of the bank's records. I just want you to tell me what that item was Look here a minute. 'December 31st, Deposit, Interest, $2,439.50.' (Indicating on records.)
"A. That's interest on daily balance paid by the Peoples Bank of Okeechobee to the County Commissioners, credited to that particular fund. *Page 514
"Q. The Peoples Bank of Okeechobee was required to pay two per cent daily balance, is that correct?
"A. On that particular fund they were, yes sir.
"Q. And this is money earned by that fund being deposited in the Peoples Bank, is that right?
"A. Yes, sir."
This item of $2,439.50 was interest paid by the Peoples Bank of Okeechobee on the daily balance in the bond fund of State Road No. 29. This interest was required by statute to be paid by any bank designated as county depository. See Sec. 2405. C. G. L. Therefore, since it was part of the statute law of the State at the time the agreement was entered into, it should have been in the contemplation of the parties, and the statute law became part of the contract. The deposit credit of interest should property be considered as part of the bond fund. Therefore the chancellor erred in that part of his final decree where he stated that "the defense of the defendant, the Florida National Bank of Jacksonville, appearing in paragraph XXXVI of the answer has been established by proof also," as paragraph XXXVI of the answer related to the two additional deposits hereinabove referred to, made to the bond fund of State Road No. 29, and which the answer claims was not protected under the contract.
The second and third questions presented by appellant relate to the liability to be imposed on the respective banks.
When this case was before us in Florida National Bank of Jacksonville v. Okeechobee County, 117 Fla. 262, 157 So. 570, we said:
"And so it is that the pledge of the securities by Florida National Bank either to secure a deposit coming to it as a banking institution or to guarantee the safety of such deposit in another bank, was at the time the contract was made,ultra vires and unenforceable. *Page 515
"This conclusion, however, does not dispose of the case because the bill of complaint alleges that pursuant to this agreement the funds were deposited with the two banks and withdrawn therefrom as is set out in the original above referred to, but that a certain part of that fund remained on deposit and undelivered to the owners thereof.
"Neither Florida National Bank nor Peoples Bank of Okeechobee acquired any title to the fund because they acquired the fund by an ultra vires act and, therefore, when that fund passed into the hands of either or both of the banks it passed as a constructive or resulting trust and the banks thereby became jointly trustees of whatever sums of money passed into both banks and both banks became bound to discharge the trust by return of the fund to the cestui que trust."
The opinion did not determine whether any liability on the part of either or both banks existed; but it did hold than when the bond fund passed into the hands of either or both banks, it passed as a constructive or resulting trust, and the banks thereby became jointly trustees of whatever sums of money passed into both banks, and both banks became bound to discharge the trust by return of the fund to the cestui quetrust.
The Peoples Bank of Okeechobee was the sole county depository in Okeechobee County, and was enabled to qualify as such, in this instance, by making arrangements with the Florida National Bank of Jacksonville, such as it made by the agreement of April 10, 1927, whereby the Florida National Bank furnished the securities necessary to make the required "satisfactory deposit." Thus the Florida National Bank was an active party to the agreement of April 10, 1927, and is estopped to deny that fact, or to state that it was only passively interested in the return of the securities which were returned by virtue of the meeting of the *Page 516 three County Commissioners, without notice to the other two.
The redeposit of the $31,500.00 and the credit of $2,439.50 are included within the terms of the contract of April 10, 1927, and are intended to be protected by the securities deposited by Florida National Bank. The stipulation shows that on May 6, 1929, when the $50,000.00 of securities were improperly released by the three members of the Board of County Commissioners who held a meeting for that purpose without notifying the other two commissioners, neither bank was entitled to secure the release under the terms of the contract. The Florida National Bank cannot be heard to plead ignorance as to this because it was held to be a joint trustee with the Peoples Bank of Okeechobee after the contract was held to beultra vires as to it. The Peoples Bank of Okeechobee secured the improper release from these three commissioners in meeting assembled, and the Florida National Bank accepted the release, though improper. Under the terms of the contract, at the time the Peoples Bank became insolvent and closed its doors, the County of Okeechobee was entitled to have at least $50,000.00 in securities to protect this fund.
Since we have held the contract to be ultra vires as to the Florida National Bank, the result is that the securities could not lawfully be pledged to secure the deposit; without the securities the Peoples Bank of Okeechobee could not qualify as a depository of the county, and the deposit was an unlawful deposit of county funds. A note in 5 L. R. A. (N. S.) 886, contains the following:
"Right to preference is respect of public funds deposited in bank which subsequently becomes insolvent: — Except that it furnished an additional ground for allowing a preference in favor of the county out of the assets of the insolvent bank, the fact that in Page County v. Rose (case reported herein) *Page 517 the taxes in question were paid directly to the bank by the taxpayer does not differentiate the case from the familiar class of cases where public moneys have, without authority of law, been deposited in a bank and mingled with the general funds of the bank. That funds deposited under such circumstances, at least if their character is known to the bankers, are impressed with a trust and, assuming the existence of the other necessary conditions, are entitled to a preference over the general creditors of the bank, is held or conceded by practically all the authorities on the subject; though, as subsequently shown, the preference, even under such circumstances, has been denied in a few cases because of the inability to trace any of such funds into the assets that came into the hands of the receiver or assignee of the bank. The question whether the ability thus to trace or identify the funds is a condition of the right to a preference in favor of trust funds is, of course, practically the same whether the trust arises from the unauthorized deposit of public, or of private, funds; and therefore no attempt is made here to discuss that subject, although the position on the point taken in cases dealing with public funds is incidentally stated in connection with the decisions on the general question as to the right of such funds to a preference. . . .
"In San Diego County v. California Nat. Bank, 52 Fed. 59, where the treasurer and tax collector of a county, without authority and contrary to law, deposited funds which the bank knew belonged to the county, and received certificates issued to them as treasurer and tax collector respectively, it was held that the funds, although mingled with the general funds of the bank, continued impressed with a trust in favor of the county, and upon the insolvency of the county (bank) were entitled to a preference over the claims of general creditors, although the identity of the trust funds had been lost. *Page 518
"City funds received on deposit by a banker, but re-deposited by him in other banks under an agreement for sharing in the deposits, under which he is to receive from them the same interest that he pays the city, and agrees that they shall be drawn only to pay city orders, are held in trust for the city as against his assignees for creditors. Marquette v. Wilkinson,119 Mich. 413, 43 L. R. A. 840, 78 N.W. 474. In this case, of course, there was no difficulty in tracing or identifying the trust funds.
"A similar result was reached in In re: Salmon, 145 Fed. 649, the facts of which present a striking similarity to those involved in the last case. In the Salmon case, however, the decision was upon the ground that, under the agreement between the banks, which was substantially the same as that involved in the Marquette case, the bank to which the public funds were awarded, and which subsequently became bankrupt, was in legal effect the agent of the bank in which the funds were redeposited, and that the latter was in contemplation of law the principal debtor of the county, and therefore the county was entitled to recover the funds so redeposited as against the general creditors of the bankrupt bank." . . .
"In some cases a preference has been allowed in favor of public funds notwithstanding that the funds were treated as a general deposit, apparently upon the ground that under the statutes the official who deposited the funds had only authority to make special deposit, and no authority to make a general deposit; and that the funds were therefore for the purpose of allowing a preference, to be regarded as a special deposit notwithstanding that they had been actually treated otherwise by the bank. This seems to be the ground of the decision in State v. Thum, 6 Idaho 323, 35 P. 858, holding that public money deposited by the state treaturer as such becomes a trust fund, and not part of the funds of *Page 519 the bank and that in case of the insolvency of the bank its receiver must treat the funds as the property of the state, and not of the bank. So, in Fogg v. Bank of Friar's Point, 80 Miss. 750, 32 So. 285, the court said that a deposit by a tax collector in a bank is a trust fund from its nature and character, as well as by the express declaration of Section 3077 of the Code of 1892; and the fact that the funds have become intermingled with other moneys of the bank, and that, in consequence of the confusion, the right to a particular individual asset can not be asserted, does not deprive the tax collector of a right of priority of payment out of the mass of assets. In First Nat. Bank v. Bunting, 7 Idaho 27, 59 P. 929 (Rehearing denied in 59 P. 1106) the court reaffirmed and reapplied the principle laid down in State v. Thum,supra, and further held that a county whose funds have been unlawfully deposited in a bank is not estopped from claiming the same as a trust fund by reason of the fact that its treasurer has received a pro rata payment thereon with general creditors. In neither this case nor the Thum case was any point made as to identifying or tracing the trust fund."
"A bank acquires no title to funds of the public deposited with it by a county treasurer in violation of law; and such funds are entitled to a preference out of the assets in the hands of a receiver of the bank, so far as they can be identified or traced into property which has come into his hands. Crawford County v. Strawn, 15 L. R. A. (N. S.) 1100, 157 Fed. 49." L. R. A. (N. S.) 918, note.
The contract being ultra vires as to the Florida National Bank, neither bank acquired any title to the deposit, and a duty remained on both banks, as joint trustee of the fund, to see that it was returned to the cestui que trust, the County of Okeechobee. This duty could not be fulfilled by the Florida National Bank by merely paying the money to the *Page 520 other joint trustee, or the liquidator of the other joint trustee, but the duty still existed to see that the money is returned to the cestui que trust, due consideration being given to the fact that the banks were held to be constructive or resulting trustees and not voluntary trustees of the fund. If the contract had been valid and enforceable, the Florida National Bank would have been jointly liable with the Peoples Bank for at least $50,000.00 of the deposit, because the last $50,000.00 of securities was improperly released. The trust relationship, which is imposed by law, cannot make them less liable in any degree than they would be under the contract.
Therefore, we think that the final decree below should be reversed and the cause remanded, so that the chancellor may, in the light of the premises established herein which alter some of the premises in the final decree, make his findings and conclusions as to what amount of liability should be attributed to the joint trustee banks.
It is so ordered.
TERRELL, C. J., WHITFIELD and BROWN, J. J., concur.
CHAPMAN, J., dissents.
THOMAS, J., disqualified.