
    SOUTHEASTERN MUNICIPAL SUPPLY CO., INC., Appellant, v. SEABOARD SURETY COMPANY, St. Paul Fire and Marine Insurance Company, R.L.P. Site Development Inc., and Robert F. Wilson, Inc., Appellees.
    No. 88-1006.
    District Court of Appeal of Florida, Fourth District.
    Nov. 8, 1989.
    Rehearing Denied Dec. 8, 1989.
    
      Michael A. Linsky of Linsky & Reiber, Tampa, for appellant.
    Jonathan N. Rolle and M. Daniel Hughes of M. Daniel Hughes, P.A., Port Lauder-dale, for appellees.
   DOWNEY, Judge.

Appellee, Robert F. Wilson, Inc. (Wilson), entered into a contract with the Broward County Board of Education to construct a public school. Wilson, as general contractor, also entered into a subcontract with R.L.P. Site Development Inc. (R.L.P.) for a portion of said work and R.L.P. contracted with Southeastern Municipal Supply Co. (Southeastern) to furnish materials for the project. After Southeastern began furnishing materials to R.L.P. for the job, Southeastern furnished Wilson and the ap-pellee bonding companies with a preliminary notice pursuant to section 255.05, Florida Statutes (1987).

In the course of preparing a progress payment for R.L.P., as was its custom, Wilson contacted Southeastern to determine the status of Southeastern’s account with R.L.P. and was advised that Southeastern was owed approximately $34,000. Thereupon, Wilson drew a check payable jointly to R.L.P. and Southeastern. R.L. P.’s president, Perkins, refused to accept the joint check and a conference call was made to Southeastern, after which Wilson drew a new check payable only to R.L.P. When Southeastern was not paid, it commenced this action to recover the balance due it from R.L.P. From a judgment in its favor for less than its entire claim, Southeastern has perfected this appeal.

The trial court found that Southeastern waived or was estopped to recover from Wilson and its bonding companies by refusing the joint check payable to it and R.L.P., which had been tendered as payment, and by relinquishing the right to be paid by the joint check, or by approving the issuance of a check made out solely to R.L.P.

The decision in this case turns upon the interpretations of the conduct of the parties in the preparation of the checks involved and their conversations with reference to the manner of said payment. Taken in a light most favorable to the judgment, it appears that Denise Gamio, Wilson’s bookeeper in charge of accounts payable, called Southeastern and inquired of Linda Snow, Southeastern’s bookkeeper in charge of accounts receivable, regarding the balance of R.L.P.’s account. Snow advised that R.L.P. owed them $34,000 and the progress payment should be made jointly. This conformed to Wilson’s custom of making joint payments to subcontractors who are indebted to materialmen for materials furnished to the job site. After Wilson drew a check for said payment jointly to R.L.P. and Southeastern, Perkins, president of R.L.P., objected to the joint form of the check, resulting in the parties’ contacting Southeastern. This time they dealt with Mr. Paup, Southeastern’s credit manager. Ferrera, Wilson’s project manager, advised Paup that Perkins objected to the joint payment. Perkins also talked to Paup and told him that R.L.P. wanted to make the payment to Southeastern itself. Paup then stated that a joint check was not necessary; that Southeastern had no authority to demand a joint check. Paup went on to say that Southeastern did not care who paid it as long as it was paid. Thereupon, Wilson drew a new check payable to R.L.P. alone.

Paup testified that he told Ferrera and Perkins that Southeastern did not care who made the payment and that Southeastern would give a release for the amount paid. However, the trial judge heard the evidence and, no doubt, felt that Paup had either not said, or had not made it clear, that Southeastern was not signing a release for the payment unless someone first paid it the amount due. The trial court could well be persuaded to that conclusion because it does not make sense that Wilson would deviate from its customary practice, nullify the joint check previously drawn, and pay the funds to R.L.P. without being assured by Southeastern that it would waive its right to payment before furnishing a release of lien for that payment. Ferrera testified that Southeastern waived its right to be paid prior to furnishing a release. Southeastern’s objection to the conclusionary testimony was sustained and Ferrera testified that he believed Paup had said that he waived it.

The parties have extensively argued the pros and cons of equitable estoppel. However, one of the bases cited by the court for its finding in favor of Wilson is waiver, which indicates the trial court believed Wilson’s version of the conversations between the parties. We find that the record viewed in that light supports the judgment in favor of Wilson.

We therefore affirm the judgment appealed from.

WESSEL, JOHN D., Associate Judge, concurs.

WARNER, J., dissents, with opinion.

WARNER, Judge,

dissenting.

I respectfully dissent. The majority states that Ferrerra testified that Southeastern had waived its right to be paid prior to furnishing a release. What the transcript reveals is that Ferrerra said “He [Paup] waived the joint check.” When he was asked whether Paup told him that Wilson would get the releases when Southeastern got its money, he said “Maybe he did say so, I don’t recall exactly.” Furthermore, Mr. Wilson himself testified that he was given the understanding from his subordinates that Southeastern would furnish them (Wilson) a release upon receipt of payment. (Emphasis added).

A waiver of the joint check as payment should not be confused with the waiver of a right of payment of the debt. In this case Southeastern had no right to compel the issuance of a joint check. Only Wilson had that right pursuant to Article 7 of their contract with R.L.P. which provides “the contractor reserves the right to make joint checks or separate payments to the subcontractor’s material suppliers ... if, in Robert F. Wilson, Inc.’s sole judgment, it is necessary to do so to insure payment of the above-named parties, or if the above-named parties have filed a Notice to Owner.” Other parts of the contract require the Subcontractor (R.L.P.) to submit releases of liens of all his materialmen (Art. 5, Attach. C), and give the contractor the right to make direct payments to R.L.P.’s materi-almen. (Condition 15 of Supplement to Contract).

In addition, the bond obligation imposes on Wilson the obligation to pay for alb materials and labor, and section 255.05, Florida Statutes (1987) gives the material-men a direct right of action against the contractor and his surety. Thus, as I see it, the right which Southeastern had was to look to Wilson for payment. The obligation which Wilson had was to see that all materialmen were paid, and it had a variety of methods under the contract to accomplish this.

Even assuming that it was Southeastern who through Snow said, “Issue a joint check,” and then agreed not to require the joint check as a means of payment, that certainly doesn’t amount to the relinquishment of the right to look to Wilson ultimately for payment. In fact, even Mr. Wilson testified that he understood Southeastern would only give a “release of lien” for the amounts it received.

Furthermore, the joint check, even if issued, would not constitute payment or tender as was found by the trial court until that check is received and endorsed or negotiated by Southeastern as a payee. See Tropical Supply Co., Inc. v. Verchio, 402 So.2d 1284 (Fla. 4th DCA 1981). Until such time, it is the property of all of the payees and as such could not constitute payment to Southeastern alone. C.f. Hendry v. Benlisa, 87 Fla. 609, 20 So. 800 (1896).

In my opinion neither the evidence nor the law supports the trial court’s decision, and therefore I would reverse.  