ON REHEARING.
West, J.Upon an application for a rehearing we are asked to decide the question of whether the appellee may successfully maintain this suit if it should appear that the transaction set out is a proper basis for an action at law for deceit against appellant.
The difficulty with this request is that we are limited in a consideration of the case to the questions presented by the record, and the cross-bill demurred to does not seem to have been drawn on that theory. It is true that it alleges that the appellant represented to the appellee that there was due a certain stated sum, less than the original amount, upon the note sued on at the time of its purchase by appellee, but it is also alleged as quoted in the opinion “ that if any other payments were made on *643the said note by the said Stuckey & Tiller Company, or by any one for the Stuckey & Tiller Company, so that the note would be reduced below the amount paid by this complainant to The Commercial Bank of Ocala for the said note and mortgage, such payments were made without the knowledge of this complainant; and the said The Commercial Bank of Ocala, if it is shown that there was any payments made and not credited thereon, would be liable to this complainant for such amount or amounts as may be shown to have been paid and not properly credited thereon.”
There is a prayer that in event it should be found that appellant has collected moneys which should be applied on the note and which the court holds should be credited thereon that appellee should have a deficiency decree against appellant therefor.
The opinion holds that “the legal effect of appellee’s contention is to say that if the note and mortgage which it owns is to be redeemed and cancelled that it (the appellee) should be protected by the decree of the court, and that if it should be found upon the accounting prayed for in both the original bill and the cross-bill that the appellant .herein who is a defendant in the original suit and against whom an accounting is prayed has received moneys which were intended as payments upon such indebtedness, and should have been credited 'there but were not so. credited the appellee should have a decree against it for the amount so received.”
The question presented is whether or not the cross-bill is good as against the demurrer. The Circuit Judge overruled the demurrer reciting in his order that appellant should have “an opportunity to defend itself against the allegation that it committed a fraud in representing that a certain .sum was the true amount *644due on the note when a 'less sum was actually due and that it bad not credited the full amounts paid on tlie timber contract on tbe note at the time it negotiated it to the complainant in the cross-bill,” but we do not understand this to mean that he intended to hold that on this branch of the case the bill contained allegations essential to the statement of an action of deceit and that the suit could be maintained against appellant on that theory.
The question which the court is asked by the petition for rehearing to consider is not presented by the record.
Rehearing denied.