J. Alexander Little and Lockhart Little, Plaintiffs in Error, vs. Lucy T. Bradley, Defendant in Error, 43 Fla. 402

Hocker, C., (after stating the facts.) The first assignment of error is “that the court erred in overruling the defendants’ demurrer to the plaintiff’s declaration.” The first ground of demurrer to the declaration is not argued by the attorney for plaintiffs in error in his brief, and is, therefore, considered as abandoned. Plaintiff below admitted the second ground of demurrer to the declaration and the name of the Victoria Florida Phosphate Company was stricken out by order of the court and the declaration amended in accordance with this order. We discover no error in this order of the Court. Smith v.

Westcott, 34 Fla. 430, 16 South. Rep. 332. The third ground of demurrer to the declaration is that “the declaration charges liability on the part of all the defendants for attorneys’ fees when the same shows on its face that only the maker of said note is liable therefor if at all.” We do not think this ground of demurrer was well taken. In both the first and second counts of the declaration it is alleged in substance that Bryan Taliaferro and the defendants J. Alex. Little and Lockhart Little, then and there jointly guaranteed the payment of the note sued on.

It is alleged in the counts that in event the note was not paid at maturity the note might be placed in the the hands of an attorney for collection, and in that event the makers .and endorsers should pay an additional sum of $300 for attorneys’ fees. This was a part of the money contracted to be paid in the note and it is alleged that the defendants guaranteed the payment of the note. ’ It does not appear from the declaration that thére was any qualification or limitation of the guarantee.

We have been referred to no authority, nor have we discovered any, which holds that the contract of a guarantor may not be coextensive with the contract, the performance of which is guaranteed. 1 Brandt on Suretyship and Guaranty,

section 111; 2 Randolph on Com. Paper, sections 850, 851; Gridley v. Capen, 72 Ill. 11. The fourth ground of demurrer to the declaration is that the plaintiff does not show any proper capacity to sue, it being argued that the declaration fails- to allege endorsement of the note by Bryan Taliaferro, trustee, its payee. The court is of the opinion that this suit is maintainable under our statute (section 981 Rev.

Stats.), authorizing suits by the real party in interest, under the facts alleged in the declaration, which show that the real rela.tion existing between plaintiff and Taliaferro, the payee of the note, was that of principal and agent, and not that of trustee and cestui que trust though the note is payable to Taliaferro, trustee. Whether if the latter relation existed the suit could be maintained by the plaintiff is not intended to be decided. Cassidy v. First National Bank, 30 Minn 86, 14 N. W. Rep. 363; Warnock v. Richardson, 50 Iowa 450; Pacific Guano Co. v. Holleman, 12 Fed. Rep. 61.

In this connection other questions are presented and argued in the brief of plaintiffs in error, but it does not appear that they are embraced in the grounds of demurrer, and we d)o not therefore consider them. Florida Central & Peninsular R. R. Co. v. Ashmore, decided at this term. The second assignment of error “that the court erred in allowing the amendment to said declaration by striking therefrom Victoria Florida Phosphate Co. as defendant and in holding said declaration sufficient with only that amendment” has been considered and disposed of under the first assignment of error.

The third assignment of error is “the court erred in sustaining plaintiff’s demurrer to defendants’ pleas.” The first of these pleas is “non assumpsit.” In view of the allegations of the declaration charging the defendants with the guaranty of the payment of a note we think “non assumpsit” is a proper plea. In Bemis v.

McKenzie 13 Fla. 553, this court had occasion to pass upon the scope of this plea, under the rules then in force, and it was held, under those rules that such a plea was good as to the common counts and say “the rule prohibiting the plea of non assumpsit is confined to' cases where the action is only on the note, and on the promise to pay contained m or implied by law from it. It is to be read as if it were worded thus. In all actions on bills of exchange and promissory notes simpliciter, without any other matter,” citing 2 M. & W. 721, 722.

It is true that under the rules now existing non assumpsit can not be pleaded ,to the common counts because it is expressly forbidden, but it does not therefore follow it can not apply to an action on a guaranty of the payment of a note not alleged to be a part of the note itself. 2 Chitty PI. (16th ed. p. 397.) Under Circuit Court rule 64 the plea of non assumpsit is made applicable to this declaration. The specific objection to the second plea is that it states a conclusion of law.

This is a plea to the first and second counts of the declaration, and alleges that defendants did not guarantee the payment of the note as alleged in the declaration, thus traversing the contract or agreement alleged in the declaration. Under

section 1064 Revised Statutes and Rule 64 of the Rules, of the Circuit Court in Common Law actions, it is a permissable plea. It is true that by the rule referred to such a plea is embraced in, if not equivalent to the plea of non assumpsit and that non.' assumpsit having been pleaded the other was unnecessary and might have been stricken by the court on motion as tending* to embarrass a fair trial of the case, but it was not subject to demurrer. It is true that in Pensacola Gas Co. v. Pebley, 25 Fla. 381, 5 South.

Rep. 593, this court held that a special plea tendering an issue covered by the plea of not guilty is improper and demurrable. But we think the proper practice was announced in Wade v. Doyle, 17 Fla. 522-531. It is there said that a special plea amounts to the general issue is an objection to the manner of pleading. * * * It may be in substance a good plea and yet subject to attack on the ground.

Where special demurrers are allowed such a demurrer is the proper method of attacking such a plea. * * * Special demurrers are abolished in this State * * * but the court has power to strike out a plea of this character. * * * tending as it does, when filed with the plea of the general issue to embarrass the trial.” We think the doctrine of this case is the correct one. It was followed in Barco v. Fennell, 24 Fla. 378, 5 South. Rep. 9, and it has been recognized in a number of cases since the decision in Pensacola Gas Co. v. Pebley, supra, viz: City of Orlando v. Heard, 29 Fla. 581, 11 South.

Rep. 182; Parkhurst v. Stone, 36 Fla. 456, 18 South. Rep. 594; Camp v. Hall, 39 Fla. 535, 22 South. Rep. 792. The court therefore erred in sustaining the demurrer to the second plea. It is proper, however, to say that if this were the only error in the record, and it appeared that the defendant had not been prejudiced by the ruling, the judgment would not be reversed, for what is a mere formal error. We advert to jt for the purpose of calling attention to the correct practice. It seems to us that the third plea was obnoxious to demurrer.

The declaration alleged the making of a note by the Victoria Florida Phosphate Company providing for the payment of principal and interest and a certain sum for attorneys’ fees, and that defendants guaranteed payment of said note. The plea does not deny any of these facts or that defendants guaranteed .payment of the note, as alleged.

It does not traverse in terms of the declaration, but seems rather, to raise a question of law, whether upon the facts stated in the declaration, and which plea does not specifically deny and therefore admits the defendants can be held to have guaranteed the payment of attorneys’ fees. The fourth assigment of error is that the court erred in striking out defendants’ plea filed November 10th, 1896. This plea is substantially the same as the second plea and is embraced in the first plea of non assumpsit.

From what has already been said ini regard 'to the ruling of the court on those pleas it is not necessary t'o pass on this assignment of error. There are other assignments of error, but in view of , what has been decided in this case, it is unnecesary to consider them. The judgment should be reversed and the cause remanded for further proceedings. Glenn, C., concurs. Per Curiam. The foregoing opinion has been examined by the court and is hereby approved and adopted and ordered to be filed as the opinion of the court in said cause.