EMMA M. CRAFT, PLAINTIFF IN ERROR,

v.

EARNEST T. KENDRICK, DEFENDANT IN ERROR

Carter, J.:

March 11, 3893, defendant in error filed in the Cir cuit Court of Hillsborough county his declaration in assumpsit, containing two counts — one for work done and materials' furnished; the other on accounts stated. Defendant’s pleas, nil debit and non assumpsit, were filed May 1, 3893, and issue joined thereon May 3, 1893. A. trial by jury was had May 25, 1893, resulting in verdict and judgment for plaintiff.

Plaintiff testified that he was employed by McCammant & Campbell, contractors, to labor upon a dwelling which they were erecting for defendant in 1892; that his work was worth §466, which was the contract price; that he was paid only about §329, leaving due §137.37; that about November 19, 1892, before he had completed his work, he had a conversation with defendant, in which he told her the contractors had “run away,” that he was a poor man and could not afford to lose his money, and asked her how he was to get his money; that she told him she had over §500 of the money due the contractors in her hands, “and that she would see me -paid; that she would pay me herself.” To this latter remark, “that she would pay me herself,” the defendant objected, because such promise, being oral, was in contravention of the statute of frauds. The objection was overruled and defendant excepted, and this ruling is assigned as error. The court did not err in this ruling. The evidence objected to tended to establish an original promise on the part of the defendant, and not a collateral promise to answer for the debt, default or miscarriage of another. This court, in the case of American Lead Pencil Co. vs. Wolfe & Co., 30 Fla. 360, text 371, 11. South. Rep. 488, said: ‘‘Even the promise to pay the debt of a third person arising out of some new consideration of benefit to the promisor, or harm to the promisee moving to the promisor, either from the promisee or the original debtor, is not within the statute of frauds, although the original debt still subsists and remains unaffected by said agreement,” and this we think is the true rule.

Plaintiff further testified that after the making of this promise he continued to work upon the house tinder his contract, and did so upon defendant’s promise to pay him; that subsequently he requested defendant to pay him, but she referred him to her son; that the son referred him to his mother, and the mother would not pay him, and thereupon he gave defendant a written notice on December 21, to the effect that he claimed a lien on the dwelling and lot for work and material furnished in the construction of the house, amounting to $137.37, which work was done and material furnished at the request of McCammant & Campbell, contractors. Defendant testified that she had a contract with McCammant & Campbell to build the house complete, and that the house was finished November 19, 1892. She admitted having a conversation with plaintiff at the time the contractor ran away, in which she told plaintiff she had $500 of the money due the contractors, and that she thought there was enough to pay all claims against the building. She denies telling plaintiff she would pay him or see him paid. After this conversation Knight & Wall presented orders drawn by the contractors for all she was due them, which she paid, so that when the written notice was served she had nothing in her hands due the contractors. The court gave the jury an instruction as follows: “If you find from the evidence that Earnest T. Kendrick performed work on and furnished material for the building and construction of the house alleged by him, that he did so at the request of the contractors, McCammant & Campbell, but that while so working he refused to go on with the work and complete the contract unless the defendant, Emma M. Craft, personally promised to pay him, whether in writing or not, that then, and in that event, she would be es-topped to deny that she had at the time of the service of the notice upon her any money in her hands due McCammant & Campbell, and she would be responsible in that event for the said debt, and you should find for the plaintiff,” which was excepted to. This-charge was clearly erroneous. In effect the jury were instructed that if plaintiff performed labor and furnished materials for the construction of a house for defendant at the request of persons contracting with defendant to build the house, and that while working-plaintiff refused to continue work unless defendant promised to pay him, that then defendant would be estopped to deny that she had at the time of the service of the notice upon her any money belonging to the cqntractors, and she would be responsible in that event for the debt due by the contractors to plaintiff. The fact that plaintiff refused to continue at work unless defendant promised to pay him would not bind her to pay the debt of the contractors, unless when plaintiff refused to continue work she did promise to pay him; and even if she then promised to pay him she would not be thereby estopped from denying that she owed the contractors any money when plaintiff served a notice upon her. By assuming to pay plain tiff under such circumstances she would render herself liable as upon any other contract, regardless of any indebtedness to the contractors; and plaintiff could recover upon this contract, and not upon any theory of estoppel.

The court gave the jury an instruction, and refused several others, requested by defendant, all based upon the supposition that plaintiff could recover under what are commonly known as the mechanics’ or laborers’ lien laws of this State. We think upon another trial all questions of this character should be eliminated, •as plaintiff’s declaration is not framed to recover upon the ground of any supposed lien as a mechanic, but upon a promise made by the defendant to pay him the debt due to him by McCammant & Campbell.

We deem it unnecessary to consider any other rulings assigned as error, as they are not likely to arise upon another trial. There is one feature of the case, however, which has not been mentioned by the counsel for either party, mz: that both pleas interposed by the defendant were expressly forbidden to be pleaded to this declaration. Circuit Conrt Common Law Rule Number 64 renders the plea of non assumpsit inadmissable, and Rule Number 68 abolishes the plea of nil debit in all actions. Such flagrant violations of these rules should not be tolerated by the Circuit Court.

The judgment is reversed for further proceedings consistent with law and this opinion.