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Amalgamated Trust & Sav. Bk v. Silha

OPINION FILED FEBRUARY 7, 1984.

AMALGAMATED TRUST & SAVINGS BANK, PLAINTIFF-INTERPLEADER,

v.

EDWARD J. SILHA, JR., INDIV. AND D/B/A PROFESSIONAL CONSULTANTS UNLIMITED, ET AL., DEFENDANTS (LOUIS LAPEYRE, DEFENDANT-APPELLEE; EDWARD PINZAK, DEFENDANT-APPELLANT).



Appeal from the Circuit Court of Cook County; the Hon. Reginald Holzer, Judge, presiding.

JUSTICE PERLIN DELIVERED THE OPINION OF THE COURT:

Defendant Edward Pinzak (Pinzak) appeals from an order of the trial court granting summary judgment to defendant Louis Lapeyre (Lapeyre) in an action for interpleader filed by plaintiff Amalgamated Trust & Savings Bank (Bank).

On April 3, 1981, the Bank filed a complaint for interpleader, alleging that on November 6, 1979, the Bank opened account No. 105621-2, and a cashier's check in the sum of $52,500 was deposited therein. The account was titled "Edward J. Pinzak, Trustee and Amalgamated Trust & Savings Bank, Escrow agent." The cashier's check had been drawn on a Texas bank, payable to "Edward J. Pinzak and Howard Isador [an Amalgamated Bank official], Trustee & Amalgamated Trust & Savings Bank of Chicago as Escrow agent." The check listed as "purchasers" the "Arroyo Grande Development Corp. (Lapeyre, McCarthy & Simpson)."

The complaint further stated that the Bank had never received any escrow agreement or instructions. The Bank alleged it had been advised by each of the four defendants that he was entitled to the funds in the account. The Bank itself made no claim to the money and requested the court to direct the Bank how to disburse the funds.

On June 1, 1981, defendant Lapeyre filed an answer to the Bank's complaint and a counterclaim against the other defendants wherein he contended that he alone was entitled to the money. Lapeyre alleged that in 1979 he sought $30 million in financing for a proposed Texas land development project. Prior to September 1979, defendant Pinzak suggested that defendant Edward Silha (Silha), d/b/a Professional Consultants Unlimited (PCU), and defendant Robert E. Young (Young), an associate or partner of Silha, might be able to procure financing for the project.

On September 22, 1979, PCU mailed to Lapeyre a proposed "letter of intent" which provided that PCU would obtain financing for the project. A fee of $52,500, to be paid in advance, would be refunded by PCU if it failed to procure a written commitment for financing within 30 days.

On September 28, 1979, according to Lapeyre, he sent a letter to Silha wherein Lapeyre stated his intention to establish an "independent escrow agent" for payment of the fee to PCU. On October 30, 1979, Lapeyre signed and returned PCU's letter of intent. On October 31, 1979, Lapeyre mailed to Pinzak a letter and the cashier's check in the amount of $52,500. The letter stated, in part:

"Enclosed is the cashier's check made out to you and Mr. Isador which will be released to Professional [sic] Consultants when they have secured the loan commitment * * * as per our various communications with Mr. Silha.

In order to be perfectly clear on your and the bank's obligations, I would like for Mr. Isador to drop me a letter along with all copies that he has regarding the loan commitment stipulations with Professional [sic] Consultants.

We would appreciate if Mr. Isador would send us a Statement of Condition of his bank."

Lapeyre's counterclaim concluded by alleging that PCU had never obtained a written loan commitment and the Bank, therefore, was obligated to return the money to him.

On July 30, 1981, Pinzak filed his answer to the Bank's complaint and to Lapeyre's counterclaim, together with Pinzak's counterclaim against the other defendants. Pinzak contended that "at all times pertinent" he acted as Lapeyre's "agent" in negotiations with PCU regarding financing for Lapeyre's project. During negotiations Lapeyre had suggested to Pinzak that PCU's fee be placed in an escrow account pending receipt of the loan commitment. According to Pinzak, PCU rejected this suggestion and demanded payment of the $52,500 fee in advance. Pinzak alleged that Lapeyre than "induced" Pinzak to pay to PCU the fee from Pinzak's own funds, while promising to reimburse Pinzak. Pinzak alleged that he personally paid to Silha the $52,500, "on behalf of Lapeyre." Attached to Pinzak's counterclaim was a copy of the face of Pinzak's personal check dated October 25, 1979, in the sum of $52,500 payable to PCU.

Pinzak further alleged that the cashier's check deposited with the Bank "was intended and promised as a reimbursement to Pinzak" from Lapeyre for the money which Pinzak had advanced to PCU "for Lapeyre's benefit as Lapeyre's agent." Pinzak also alleged that "with Lapeyre's knowledge and consent" Pinzak requested from PCU additional security to guarantee PCU's refund of Pinzak's money in the event the loan commitment was not obtained. Thereupon, on October 26, 1979, Pinzak received a check from PCU in the amount of $52,500, payable 30 days from its issuance in the event the commitment was not forthcoming. A copy of the face of PCU's check to Pinzak was attached to Pinzak's counterclaim.

PCU never obtained the loan commitment. Prior to the date on which its check to Pinzak was made payable, PCU closed the account on which the check was drawn. Based upon these facts, Pinzak asked the court to award to him alone the funds on deposit with the Bank.

On August 25, 1981, Lapeyre filed his answer to Pinzak's counterclaim, denying each allegation save one, to which ...


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