Andersen, A.C.J.
— These consolidated cases arose out of the operations of certain New York money brokers in this state. At issue are questions involving the common-law doctrines of champerty and maintenance.
The trial court declined jurisdiction of the cases on the ground that the actions brought by the plaintiffs, as assignees of the money brokers, violated public policy against maintenance — and that the actions presented a potential for attorney conflict of interest regarding settlement. The trial court also denied, or did not rule on, the various parties' cross motions for summary judgment.
Background — The Money Brokerage Business
The issues presented by this appeal are decided on the basis of the appellate record. Some background to the unique business of money brokerage is helpful, however, to an understanding of the dealings which gave rise to this litigation.
In the September 1970 edition of Banking, an interview with the acting general counsel of the Federal Deposit Insurance Corporation, entitled "The FDIC Discusses Money Brokers," is reported. The following questions and answers from that article are informative:
Q. What is meant by the terms money broker, brokered deposit, and link financing?
A. A money broker is any person or organization who regularly engages in the solicitation of funds for deposit in banks or loans to third parties and receives a fee or other compensation for this service.
[726]*726A brokered deposit is any deposit which is placed in a bank pursuant to an arrangement with a money broker and for which the depositor receives a premium (usually somewhere between 1 % and 3 % of his deposit) over and above the interest paid by the bank on his deposit. This premium may be paid by the bank — a practice which is considered a violation of Federal interest rate regulation if the bank is already paying interest on its deposits at the maximum legal rate — or, more typically, it may be paid by one who wishes to borrow funds from the bank.
In a link financing transaction, the bank has some doubts about the credit worthiness of the proposed borrower, is simply short on lendable funds, or desires to increase the effective yield on the loan. It agrees to the loan only on condition that the borrower leave a large portion of his loan on deposit with the bank as a compensating balance or else bring in new deposits at least equal to the loan. The borrower goes to a broker who, for a fee, usually paid by the borrower, arranges to have new deposits placed with the bank. The loan is then linked to these new deposits in the sense that the deposit proceeds are used to make the loans; however, the deposits cannot be used to offset the loan in case of default. In theory, everyone is satisfied. The bank acquires new money to lend. The borrower gets his loan. The broker receives a fee. The depositor gets a premium.
Of course, the banker may find himself saddled with a bad loan, or a liquidity problem when the funds are withdrawn, or both.
Q. Is it the FDIC's position that the practice of brokering deposits is hazardous or harmful in and of itself or is it only the linked loans which constitute a danger to the bank?
A. Of course no bank has ever failed simply because it accepted additional funds for deposit. The failures really result from bad loans and from a large concentration of highly volatile funds invested in long-term loans. The fact is that most brokered deposits are placed with banks in a package with high-risk loans.
However, the argument that the whole problem turns on proper lending practices, effective credit investigations, etc., really ignores the dangerous aspects of brokerage transactions. Money brokers form a nationwide [727]*727network. It has been shown that they can generate relatively large sums for deposit in a single bank in a short period.
For example, money brokers operating on a nationwide basis placed $2,700,000 in The Peoples State Savings Bank in Auburn, Mich., in less than eight weeks subsequent to a regular examination of the bank. The transactions in other closed banks were equally fast. The size and speed of these transactions plus a lack of current and specific information on the part of Federal or state authorities as to the situation in each one of the nation's 14,000 banks is an open invitation to fraud and misapplication of the brokered funds received, or, at best, unwise or imprudent lending practices.
Q. A money broker has recently stated in the press that he is 'merely an independent third party and has no interest in what are essentially relationships between banks and their customers. What do you think of this contention?
A. Brokers are well aware of the hazards which result from transactions of this kind, and they are the necessary element which brings together the deposit and the high-risk loan. We have reason to believe that the broker frequently takes the lead in presenting and selling a packaged transaction to the lending bank. In occupying this role a broker acts more in the capacity of a promoter than that of an independent third party. Moreover, the fee paid to the broker by a borrower is usually the source of the premium to the depositor over and above the interest rate ceilings set by the Federal agencies.
Facts of Case
The facts are complex. Some detail is therefore required. In 1970 and 1971, and at all times herein, North American International Companies, Inc. (North American) was a Delaware corporation whose offices were located in Mineóla, New York. It, as well as Share Brothers Company (Share Brothers), a partnership operating out of Syracuse, New York, were money brokers.
Beginning in January 1970, the maximum rate of interest that any federally insured financial institution could legally pay on any certificate of deposit ("CD") or passbook [728]*728account was uniformly limited throughout the country by various federal regulatory agencies. Nevertheless, money brokers such as North American and Share Brothers, although aware of the prohibitions against exceeding the maximum interest rate, were able to bring together depositors (such as the plaintiffs in these cases) and lending institutions which directly or through generally substandard borrowers were willing to pay an additional sum.
Typically, each depositor delivered money, for example, $10,000 to Share Brothers in Syracuse, New York. Share Brothers would acknowledge receipt of the funds to purchase a $10,000 CD to be issued by an unspecified savings and loan association to bear interest at the maximum allowable interest rate, at that time 5 1/2 percent. Each depositor was also to be paid an additional 1 percent as his or her share of the "bonus interest." Share Brothers then transmitted the funds to North American, another money broker, which in turn transmitted them to a Washington resident (hereinafter referred to as the "intermediary”1) who obtained CD's for the depositors from a Pacific Northwest area financial institution, customarily a savings and loan association. The intermediary paid the total bonus interest, customarily 3 percent, and from this North American and Share Brothers deducted their fees and the depositors received their 1 percent premium.
Since the savings and loan institution was prohibited from paying more than the specified rate of interest, if the 3 percent bonus interest was paid by a savings institution or its agent, it was illegal. It was not illegal, however, if it was paid by some high risk borrower through link financing or a similar arrangement (see "Background" above). The depositors and the principals in the money brokerage firms all testified in their depositions to the same effect, they neither knew nor cared where the 3 percent bonus interest came from. Their concern was only that the depositors get [729]*729their CD's in a federally insured savings institution and that they all obtain their share of the bonus interest.
The money brokers' ignorance of the source of the bonus interest is quite remarkable when it is considered that they sent approximately $2.75 million to savings institutions in the state of Washington in 1970 and 1971, primarily through this same intermediary.
In placing these brokered funds with savings and loan associations in the state of Washington, North American physically delivered the funds to the intermediary and he then purchased CD's or passbook accounts in the names of the individual depositors. Initially, the brokered funds went into Northwest Guaranty Savings and Loan Association (Northwest Guaranty), a firm which was later placed in receivership after its president, Kenneth Grove, fled the jurisdiction. Subsequently, however, funds were also placed in savings' and loan associations other than Northwest Guaranty.
North American had its first dealings with the intermediary in April 1970. In the following year, through him, North American placed over $2.5 million with Northwest Guaranty on 18 different occasions. Each of the transactions was similar in form. North American would send the intermediary checks payable to Northwest Guaranty and letters of transmittal directing him to use the checks to purchase CD's from Northwest Guaranty. The intermediary would then deliver the checks to Northwest Guaranty and have the CD's issued in the names of the depositors. North American did not deal directly with Northwest Guaranty. CD's were always issued in appropriate names as requested by North American.
Because brokered deposits did present some risk to savings institutions (see "Background" above), the Federal Home Loan Bank Board (FHLB) prohibited federally insured savings and loan associations from accepting more than 5 percent of their deposits in brokered deposits.
[730]*730In due course, the FHLB examined Northwest Guaranty and found that it was violating the 5 percent rule. Northwest Guaranty was thereupon directed to send a letter to its money broker, North American, requesting the names of all investors or depositors that North American had represented in opening accounts with Northwest Guaranty. That letter, which the FHLB required to be sent, also advised North American that in opening future accounts North American would be required to certify that no payment was made to anyone by anyone other than the savings and loan association, and that North American had not paid or received any consideration other than the lawful rate of interest.
The FHLB also notified Northwest Guaranty that Northwest Guaranty would be held responsible for the money broker, North American, furnishing the depositors' list.
North American refused to disclose the depositors it had represented, claiming a confidential relationship, and wrote Northwest Guaranty a letter which concluded:
For that reason we must look to other associations in your area to take care of the investment requirements of our clients.
The principal in North American then commenced using other of his companies to place the brokered deposits in Northwest Guaranty, in violation of the 5 percent rule. North American then also commenced placing brokered deposits in Security Savings and Loan Association (Security), another savings institution in this state.2 At this point, at least one savings and loan association in the state of Washington advised North American that it had no interest in receiving brokered deposits from it.
The intermediary suggested to North American that in view of the FHLB's close scrutiny, it would be easier in dealing with savings and loan associations in this state if [731]*731the checks he used to purchase CD's were drawn on Washington banks. Thereafter, in the instances involved herein, North American's checks were made payable to the National Bank of Commerce of Seattle (N B of C).3
North American thereupon sent its checks to the intermediary along with letters of transmittal. Each of the checks was certified, was payable to N B of C and bore on its face a notation such as "for purchase of CD's" or "for purchase of CD's for Giambattista" or the like. North American at no time had an account at N B of C. The checks were deposited by the intermediary directly in one of his own checking accounts at N B of C. The intermediary thereupon purchased the CD's from Security with checks drawn on one of his own N B of C checking accounts. In all instances, the CD's totaling some $245,000 were purchased from Security. At no time did North American, through the intermediary or otherwise, purchase any CD's from N B of C.
The present dispute with N B of C arose when it was discovered that $65,000 worth of the CD's which had been purchased from Security by the intermediary had been paid for with nsf checks drawn on the intermediary's N B of C accounts and Security cancelled the CD's purchased with those checks.
Share Brothers thereupon assigned its rights, as the maker of the certified checks, to its depositors who had received the now cancelled CD's. Share Brothers also retained counsel to represent the depositors in a suit against N B of C to recover the depositors' $65,000, the theory of the suit being that N B of C had erred when it allowed the intermediary to deposit the certified checks which were payable to N B of C directly in the intermediary's own checking accounts at that bank.
Through New York counsel for Share Brothers, Seattle counsel was retained to file suit on behalf of the depositors [732]*732as assignees of the money broker against the bank, with legal fees and costs being paid by Share Brothers. The agreements executed between Share Brothers and the depositors were substantially the same. The operative portion of an illustrative agreement reads:
1. [Depositor] agrees to prosecute in good faith the pending action against The National Bank of Commerce of Seattle in the State of Washington to final conclusion and agrees not to institute any legal action against Shares or attempt to enforce any alleged claims for damages against Shares, arising out of the alleged transaction unless and until the said pending action is brought to a final determination.
2. In the event [depositor] shall thereafter institute legal action against Shares arising out of the alleged transaction, which legal action is not now barred by the Statute of Limitations, Shares agrees to refrain from pleading the Statute of Limitations as a defense thereto.
The appeal of a separate action involving a case wherein Security was sued by a depositor over a $10,000 brokered deposit placed in a passbook account therein by North American was consolidated for hearing with the other depositors' suits against N B of C. In that case, the suit by depositor Charlotte Vant Zelfde was dismissed on Security's motion for summary judgment, apparently on the same declination of jurisdiction grounds that the suits against N B of C were dismissed, and on the additional ground that the Vant Zelfde action was barred by a written release Mrs. Vant Zelfde had given to Security.
Three ultimate issues are presented.
Issues
Issue One. Did the trial court err in declining jurisdiction of the depositors' actions against the bank and savings and loan association on the ground that the money broker's conduct, including its agreement to pay attorneys' fees and costs of those actions, violated public policy against maintenance and presented a potential for attorney conflict of interest regarding settlement?
[733]*733Issue Two. Did the trial court err in denying the depositors' motions for summary judgment against N B of C?
Issue Three. Did the trial court err in granting Security Savings and Loan Association's motion for summary judgment against the depositor who had sued it?
Decision
Issue One.
Conclusion. The agreement for the prosecution of the suit by the depositors against the N B of C did not involve champerty or maintenance although portions of it were void as against public policy. Courts cannot decline to exercise their jurisdiction because of the motive or purpose of the parties bringing the action, therefore, the trial court erred when it dismissed the depositors' suits.
The strict doctrines of champerty and maintenance, as known to the common law, grew out of causes peculiar to the society of an earlier time. See M. Radin, Maintenance By Champerty, 24 Calif. L. Rev. 48 (1935-1936). In no state are these doctrines and the laws relating to them preserved with their original rigor. In many jurisdictions, these doctrines have been declared obsolete and, in yet others, are preserved only in a much modified form, usually by statute. Interstate Collection Agency, Inc. V. Kuntz, 181 N.W.2d 234, 241 (N.D. 1970); 14 Am. Jur. 2d Champerty and Maintenance § 1 (1964). It is questionable whether many remnants of these doctrines remain in this state. See Weed v. Foster, 58 Wash. 675, 678, 109 P. 123 (1910); RCW 9.12.010.
We agree with the modern definition of these doctrines as stated by the Supreme Court of Oregon:
Champerty is the intermeddling of a stranger in the litigation of another, for profit, and maintenance is the financing of such intermeddling.
Groce v. Fidelity Gen. Ins. Co., 252 Ore. 296, 304, 448 P.2d 554, 558 (1968). Accord, 14 Am. Jur. 2d Champerty and Maintenance § 10, at 848 (1964); Joseph Mazzini Soc'y v. Corgiat, 63 Wash. 273, 275, 115 P. 93 (1911).
[734]*734Nothing in the record suggests other than that the agreements relative to the suits entered between the depositors and Share Brothers were negotiated at arm's length. Neither is there any suggestion that Seattle counsel for the depositors acted in anything but the most appropriate fashion. The letter by the original Seattle counsel to the depositors as to whether or not they wanted him to represent them at Share Brothers' expense clearly and objectively related the facts of the matter. Seattle counsel's letter also cautioned that the depositors should get advice concerning the advisability of an action against the money brokers from disinterested New York counsel since he had an obvious conflict of interest in that regard.4
The money brokers were parts of the conduit through which money flowed from the depositors to the ultimate depository and they had the legal responsibilities attendant thereto. They claimed to have causes of action against the bank and assigned those causes of action to the depositors. Thus, this is not a case wherein the actions of the money brokers amounted to the officious "intermeddling of a stranger in the litigation of another." The money brokers' conduct in paying attorneys' fees and costs, therefore, does not constitute either maintenance or champerty. Groce v. Fidelity Gen. Ins. Co., supra; Joseph Mazzini Soc'y v. Corgiat, supra; 14 Am. Jur. 2d Champerty and Maintenance § 10, at 848 (1964).
N B of C's reliance on Monjay v. Evergreen School Dist. 114, 13 Wn. App. 654, 661, 537 P.2d 825 (1975) is misplaced. Monjay involves a different although related problem, that of settlement agreements such as releases, covenants not to sue, covenants not to execute and similar innovative agreements in cases involving joint tort-feasor [735]*735liability. The agreement between the depositors and Share Brothers, however, is not a settlement agreement, therefore, Monjay is not in point.5
The trial court's final order declining jurisdiction over the depositors' claims stated the following with respect to potential conflict of interest:
The nature of the fee arrangement in regard to these actions, existing by virtue of written agreements between the Share Bros, and [the depositors], creates a potential conflict of interest for [the depositors'] attorneys, both in approaching Share Bros, for a contribution to settlement and also in advising [the depositors] to accept less from the Washington Defendants and to seek a greater share from the New York potential defendants.
We share the trial court's concern over the potential settlement conflict inherent in these agreements. The law of the State of Washington favors voluntary settlement of disputes. Rogich v. Dressel, 45 Wn.2d 829, 843, 278 P.2d 367 (1954); Aust v. Bridges, 17 Wn. App. 554, 556, 564 P.2d 1167 (1977). We hold that to the extent any of the depositors' agreements either prohibit the depositors from settling any claim which they might personally have against N B of C or Security without Share Brothers' consent, or prohibit the depositors from proceeding directly against Share Brothers on the depositors' own claims against Share Brothers, the agreements are void as against public policy and unenforceable. See Dombey, Tyler, Richards & Grieser v. Detroit, T. & I. R.R., 351 F.2d 121, 125 (6th Cir. 1965); [736]*736Jackson v. Stearns, 48 Ore. 25, 28, 84 P. 798, 799-800 (1906).
Thus the depositors, despite the agreements they entered into with Share Brothers, retained their right to sue Share Brothers for moneys had and received, breach of contract and violation of the federal securities law. See Safeway Portland Employees' Fed. Credit Union v. C.H. Wagner & Co., 501 F.2d 1120 (9th Cir. 1974).
In connection with the depositors' rights to proceed directly against Share Brothers, it should be added that it is, of course, axiomatic that a person cannot have a multiple recovery for a single wrong. Monjay v. Evergreen School Dist. 114, supra at 658.
There is, however, nothing in the fact that portions of the depositors' agreements with Share Brothers are void that justified the Superior Court closing its doors to the depositors in these actions. Courts cannot properly decline to exercise their jurisdiction merely on the ground of the motive or purpose of the parties bringing the action. Hafeman v. Gem Oil Co., 163 Neb. 438, 80 N.W.2d 139, 158 (1956); Adams v. Union R.R., 21 R.I. 134, 42 A. 515, 517 (1899); 20 Am. Jur. 2d Courts § 93 (1965). The trial court's order declining jurisdiction over the depositors' claims and dismissing their actions must therefore be reversed.
Issue Two.
Conclusion. There are material issues of fact in the depositors' suits against N B of C, therefore, the trial court did not err in denying the depositors' motions for summary judgment.
The depositors, who are the assignees of North American, the maker of the certified checks, argue that a bank receiving a check drawn in its favor is under a duty to ask instructions from the maker before it disburses the fund. They further argue that since N B of C failed to do this and paid out the proceeds of the checks directly to the intermediary, N B of C is liable to the maker if the party receiving the funds was not authorized to receive them. N B of C does not contend this is not the law, but it does claim [737]*737that the intermediary who received the funds was in fact authorized by the maker to receive the funds. In addition, N B of C raises various affirmative defenses.
The depositors argue that the intermediary was either an independent businessman or the agent of the savings and loan associations where the CD's were purchased. N B of C, on the other hand, claims that the intermediary was the agent of the money broker and was authorized to treat the checks exactly as he did. The trial court in its final order denied the depositors' motions for summary judgment ruling that "there are genuine issues of material fact as to the defenses and affirmative defenses of [N B of C] including actual authority, apparent authority, estoppel and ratification; . . ."6 We agree.
Agency is usually a question of fact. Busk v. Hoard, 65 Wn.2d 126, 129, 396 P.2d 171 (1964). Further,
An agency relationship, of course, may arise without an express understanding between the principal and agent that it be created. It does not depend upon an express undertaking between them that the relationship exists. Petersen v. Turnbull, 68 Wn.2d 231, 412 P.2d 349 (1966). If, under the circumstances, the parties by their conduct have created an agency in fact, then it exists in law.
Matsumura v. Eilert, 74 Wn.2d 362, 368, 444 P.2d 806 (1968).
It is true, as the depositors argue, that mere possession alone of a negotiable instrument not made payable to the bearer or endorsed without restriction is not proof of the possessor's authority to discharge the payee's or maker's interest. Owens v. Wood, 43 Ala. App. 366, 374, 190 So. 2d 734, 741 (1966); Restatement (Second) of Agency § 177 (1958). But there is more here than just the intermediary's possession of the certified checks.
[738]*738It is uncontroverted that North American's principal business was acting as a money broker, raising funds from third parties for placement in savings and loan associations at the request of individuals desiring such placement. It is also uncontroverted that the funds obtained by Ñorth American would be forwarded by it to the intermediary for placement in savings and loan associations in the Seattle area. The certified checks in question were sent by North American to the intermediary with letters instructing him to purchase CD's from Security. The checks, however, were not made payable to Security but to N B of C from which no CD's had ever been purchased and where North American never had an account.
Under the unusual facts of this case, and particularly in view of the problems that North American was experiencing in placing its funds due to the close scrutiny of federal officials, the trier of the fact could reasonably find as follows: that the reason the money broker's certified checks were not made payable directly to Security was to conceal the source of the funds being used to purchase CD's from Security; that the only way the intermediary could conceal and deliver the funds to Security for CD's was to "wash" them by first depositing the money broker's checks in one of his personal or corporate accounts, which were at the N B of C, and then writing checks on his own accounts payable to Security, as he did; therefore, the intermediary was at least impliedly authorized to handle the checks as he did.
An implied agency is an actual agency and can be proved from facts and circumstances by deduction or inference; it is established by the words and conduct of the parties and by the circumstances of the particular case. Sharpe Sign Co. v. Parrish (1949), 33 Wn. (2d) 883, 207 P. (2d) 758; Weller v. Speet (1936), 275 Mich. 655, 267 N. W. 758.
Turnbull v. Shelton, 47 Wn.2d 70, 72, 286 P.2d 676 (1955).
[739]*739See also 3 Am. Jur. 2d Agency §§ 18, 71 (1962).
Considering the evidence and all reasonable inferences therefrom most favorably to the nonmovant party, as we must at this juncture of the litigation, the agent's authority to act as he did with reference to North American's certified checks payable to N B of C was a factual issue to be resolved by the trier of the fact and not by summary judgment. See Marino Property Co. v. Port of Seattle, 88 Wn.2d 822, 824, 567 P.2d 1125 (1977). The trial court did not err in refusing to enter a summary judgment in favor of the depositors against N B of C.
As the trial court also noted in its final order, N B of C's additional motion for summary judgment on various other grounds "was not scheduled to be heard, was not heard, and need not be scheduled to be heard ..." It therefore cannot be considered for the first time on appeal. Fuqua v. Fuqua, 88 Wn.2d 100, 105, 558 P.2d 801 (1977); Wegg v. Henry Broderick, Inc., 16 Wn. App. 589, 595, 557 P.2d 861 (1976).
Issue Three.
Conclusion. There is also a material issue of fact in connection with the release given by Mrs. Vant Zelfde to Security with respect to the scope of the release signed by her, and the intent of the parties in that regard presents a question of fact to be determined from the surrounding conditions and circumstances construed with reference to the language of the release.
In the suit brought by Mrs. Vant Zelfde against Security, which was consolidated with those brought against N B of C, Security's brief "adopt[s] by reference all matters urged or contended by NBofC both as to factual matters alleged, and as to all legal theories and conclusions urged." Our foregoing rulings with respect to the suits against N B of C therefore pertain, where applicable, to the suit against Security.
[740]*740In addition, Mrs. Vant Zelfde signed a release which Security set up as an additional affirmative defense.7 No valid purpose would be served by detailing all of the facts surrounding the Vant Zelfde transaction, which are also complex and also involve the activities of the Share Brothers. Suffice to say, we conclude that there are material issues of fact as to whether the release, which by its terms, "pertains to account #5503 solely," was under all of the attendant circumstances intended to release Security from the claim on which the Vant Zelfde action against it is based. 66 Am. Jur. 2d Release § 30 (1973). See Bickford v. Hupp, 83 Wash. 427, 429, 145 P. 454 (1915).
Reversed and remanded for further proceedings not inconsistent herewith.