ELIZABETH S. ROBINSON, PLAINTIFF IN ERROR,

v.

HENRY G. AIRD AS RECEIVER OF THE DIME SAVINGS BANK OF FLORIDA, A CORPORATION UNDER THE LAWS OF FLORIDA, DEFENDANT IN ERROR

Carter, J.:

On February 4, 1895, defendant in error began an action of assumpsit against plaintiff in error in the, Circuit Court of Duval county. There are four counts in the declaration, each containing allegations to the effect that on the day of , A; D. 1894, by a decree of the Circuit Court of Duval county in a cause wherein the Comptroller was complainant and the Dime Savings Bank, a corporation under the laws of Florida, was defendant, the plaintiff was appointed receiver of all the properties and assets of the bank, and authorized to take possession of same and sue for and collect all outstanding indebtedness due it, and that in accordance with the decree, appointment and statutes in such cases made and provided plaintiff thereupon duly qualified as receiver and the bank transferred and delivered to him all of its properties, assets and accounts. The first count alleges that the assets of the bank so transferred and delivered to plaintiff included a certain promissory note dated July 10, 1893, made by defendant, whereby she promised to pay to the order of the bank $2,919.70 eighteen months after date, with interest at 10 per cent per annum after maturity; that by virtue of his appointment and the statute in such cases provided the, amount of the note became payable to plaintiff in error; that being' so liable defendant promised to pay the note, to plaintiff, but -did not pay same.

The second count alleges that the assets of the bank so transferred and delivered to plaintiff included a certain promissory note dated July 10, 1893, made by defendant, whereby she promised to pay to the bank or order $50 for attorneys’ fees if said note, was not paid at maturity and was placed in the hands of an attorney for collection; that the note was not paid at maturity and had been placed in the hands of an attorney for collection, whereby said sum of $50 became due and payable by defendant to the bank; that by virtue of his appointment and the statutes in such cases provided said amount became due and payable by defendant to plaintiff, and that being-so liable she promised to pay said sum but did not pay same.

The third count alleges that the assets of the bank so transferred and delivered to plaintiff included a certain promissory note dated November 14, 1893, made by Roland Woodward, whereby he promised to pay de fendant $576.57 six months after date with interest at 10 per cent per annum after maturity, and defendant endorsed said note and delivered same to the bank; that the note was presented for payment and was dishonored, whereof defendant had due notice but did not pay same; that by virtue of his appointment and the statute in such cases provided the amount of said note became due and payable to plaintiff; that being so liable defendant promised to pay the note to plaintiff but did not pay same.

The fourth count alleges that the assets of the bank so transferred and delivered to plaintiff included a certain promissory note dated November 14, 1893, made by Roland Woodward and payable to the order of defendant, and by defendant endorsed and delivered to the bank, whereby defendant promised to pay said bank the sum of $100 for attorneys’ fees in the event said note was not paid at maturity and was placed in the hands of an attorney for collection; that said note was not paid at maturity and same had been placd in the hands of an attorney for collection, whereby defendant became liable to said bank for said sum of $100; -that by virtue of his appointment and the statute in such cases provided the said sum of $100 became due, and payable by the defendant to plaintiff, and that being so-liable defendant promised to pay said sum, but did not pay same.

The defendant demurred to the fourth count, the matters of law noted for argument being that the allegations fail to show that defendant had due notice of the nonpayment and dishonor of the note mentioned therein, and fail to show liability on the part of defendant to pay the alleged claim. This demurrer was overruled.

The defendant’s pleas upon which plaintiff joined issue are as follows: No-. 1 to 1st and 2nd counts. That before action and while said bank was solvent and before plaintiff was appointed receiver of all the property and assets of the bank and was authorized to take possession of same and sue for and collect all outstanding indebtedness due the bank as alleged in the declaration at the request of the bank, the defendant discharged and satisfied plaintiff’s claim before the same became due by payment to E. I. Robinson as treasurer of the bank.

No. 2 to 2nd count, that defendant never promised as alleged.

No. 3 to 3rd and 4th counts. That defendant was not duly notified that said note was presented for payment to the maker and was dishonored when the same became due.

No. 4 to 4th count. That defendant never promised as alleged.

On May 14, 1895, the cause was tried. The jury found for plaintiff on each count of the declaration, assessing damages on the first and second counts at $2,963.96, on the third and fourth at $724.23, making a total sum of $3,697. 92, for which judgment was duly entered, after, defendant’s motion for a new trial was overruled. From the judgment entered this Writ of error was taken.

I. The first assignment of error relates to the ruling upon the demurrer to the fourth count of the declaration. This count alleges that one Roland Woodward executed his promissory note payable to the order of the defendant, and that defendant endorsed and delivered said note to the bank whereby she promised to pay the bank $100 for attorneys’ fees in the event the note was not paid at maturity and was placed in the hands of an attorney for collection. No facts are alleged showing defendant’s liability, in any capacity other than as mere endorser. It is not alleged that she was a maker of the note. or that by the terms of the note or the endorsement she assumed any liability beyond that assumed by an ordinary endoresment of a negotiable paper, i. another and made in contemplation of the bank’s insolvency or after the commission of ah act of insolvency by it. The fact that the payment was not actually made by defendant until after insolvency, would not affect the question, if she had bound-herself to pay it at a time when the bank had committed no act of insolvency and when insolvency was not contemplated. The testimony offered did not show upon its face that the transaction came within the prohibition of the statute, nor was the other evidence in the case of .such a conclusive character as to show that this particular transaction was clearly illegal. The rejected evidence should have been submitted to the jury for them to determine whether the transaction took place at such a time and for such a purpose as the statute prohibited, under proper instructions as to the law from the court.

As the validity of the other small credits claimed as payments on the note by defendant depends upon the principles discussed as to the other payments claimed, it is not necessary to refer to them specifically.

The judgment is reversed' and a new trial granted.