On petition for rehearing and upon argument at the bar of this Court it is contended that the following plea constitutes a good defense to plaintiff's alleged cause of action, viz.:
"2. And for a second additional plea defendant says that plaintiff transferred and delivered the travelers cheques described in his amended bill of particulars to Bank of Pahokee as security for the faithful payment of a check in the amount of Seven Hundred Twenty-two Dollars and Eighteen Cents ($722.18), which said bank cashed and paid for another at his insistance and request; that said check was drawn against insufficient and uncollectable funds, which funds were never collected by the drawee bank thereof, and that said check so cashed by the Bank *Page 79 of Pahokee was never honored and neither was said check nor any part of the amount for which it was drawn ever paid to the Bank of Pahokee and thereafter and before this action Bank of Pahokee presented said travelers cheques to defendant for payment and defendant accepted the same and made payment thereon to the Bank of Pahokee."
We have re-examined the cases relied upon by counsel for plaintiff in error, viz.: Brown v. First National Bank of Panama City, 86 Fla. 198, 97 So. 351; Withers v. Sandlin,36 Fla. 619, 18 So. 856; 49 Corpus Juris 1019-1021-2-6; 21 Rawle C. L. 666-7, and conclude that the plea, supra, should not have been stricken by the lower court as it states a good defense and an issue of fact which may be presented to and settled by the jury under appropriate instructions.
For the error pointed out on rehearing, the judgment appealed from is reversed and a new trial granted.
The original opinion previously adopted by this court is hereby altered, changed, revised and modified in so far as it conflicts with this opinion adopted on rehearing.
It is so ordered.
WHITFIELD, P. J., and BROWN and CHAPMAN, J. J., concur.
TERRELL, C. J., concurs in opinion and judgment.
Justices BUFORD and THOMAS not participating as authorized by Section 4687, Compiled General Laws of 1927, and Rule 21-A of the Rules of this Court. *Page 80