tion having some tendency to support the government's theory and which has been thought of itself sufficient. Kirchner v. U. S. (C. C. A. 4) 255 Fed. 301, 166 C. C. A. 471. But we have no occasion to rely upon that proposition. [6] Aside from the claim that the evidence did not justify the conviction, and certain exceptions to the allowance of specific questions asked of one or another witness-which exceptions have no merit-the only point now urged is that evidence was admitted regarding a considerable number of statements made by White which were not alleged in the indictment, and which were not made at the same time and place as the statements counted upon. The chief of these was that any man ought to be hung who would do as the President had done, and send boats across the ocean to be sunk, after he had been warned by the Germans not to do so. It is a sufficient reply to this contention to say that where, as here, the question of intent is all-important, the respondent's similar conduct, at a time and place not too remote, may be proved to show that intent, even if it also shows a separate offense. Shea v. U. S. (C. C. A. 6) 236 Fed. 97, 149 C. C. A. 307. This rule is not changed because it may happen-as was here the case that another indictment is pending, based upon these other statements. That fact emphasizes the theory that the two statements constituted two offenses, but it does not bear against the admissibility of either as tending to show the intent accompanying both. [7] Complaint is also made of the admission of evidence that White had not subscribed, save to a trifling amount, to any of the governmental war loans, and that, upon a visit by a committee after this indictment was found, he refused to do so, because he was being prosecuted. We doubt whether this evidence bore directly enough on his intent at the earlier period, in order to make it admissible; but no objection was made at the time, there is no probability that it was substantially prejudicial, and it cannot be considered reversible error. The judgment is affirmed. SPONGE EXCH. BANK OF TARPON SPRINGS v. COMMERCIAL (Circuit Court of Appeals, Fifth Circuit. February 14, 1920.) No. 3389. 1. EANKS AND BANKING 98-SALES G-ARRANGEMENT UNDER WHICH ADVANCES WERE MADE ON NOTES HELD NOT "PURCHASES,' BUT LOANS AT USURIOUS INTEREST, AND BANK ACTING AS INTERMEDIARY AN ACCOMMODATION INDORSER. An arrangement under which a bank advanced to a payee of notes 77 per cent. of their amounts, and turned them over to a credit company, which advanced the same amount to it, and was to pay the other 23 per cent. out of payments on the notes after deducting a charge of 1 per cent. per month, the bank making a charge not measured by the time elapsing between the date of its payments and the date of its reimbursement, was not a purchase of the notes by either party, but a loan on the notes at a For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes *Certiorari denied 252 U. S., 40 Sup. Ct. 587, 64 L. Ed. (263 F.) usurious rate of interest, and the bank was a mere accommodation indorser of notes in which it never had any beneficial interest. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Loan; Purchase.] 2. SALES 6 TRANSACTION IS NOT A "SALE" WHERE INDORSER IS TO ACCOUNT FOR COLLECTIONS IN EXCESS OF ADVANCES WITH INTEREST. When by the terms of a transaction by which an indorsee acquires a note he is required to pay or account to the indorser for so much of what is collected on it as exceeds the amount advanced and agreed interest thereon, the transaction is not a "sale." [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Sale.] 3. APPEAL AND ERROR 843 (2)-PLEA OF PAYMENT NEED NOT BE CONSIDERED WHERE UNCONTROVERTED EVIDENCE ENTITLED DEFENDANT TO VERDICT ON ANOTHER PLEA. On appeal in an action against a bank on notes, its plea of payment need not be considered, where the uncontroverted evidence sustained its plea that the indorsement of the notes was a mere lending of its credit to the notes. 4. BANKS AND BANKING 98-UNDER STATUTE BANK COULD NOT LOAN ITS CREDIT TO NOTE BY ACCOMMODATION INDORSEMENT. Under Gen. St. Fla. 1906, § 2707, a bank is not permitted to lend its credit to paper which it does not own, and in which it has no beneficial interest, by indorsing such paper. 5. EVIDENCE 66-PARTIES DEALING WITH BANK WERE CHARGED WITH KNOWL EDGE OF STATUTE UNDER WHICH IT COULD NOT MAKE ACCOMMODATION INDORSEMENT. Parties advancing money on notes taken through a bank, which acted as intermediary, were chargeable with notice of the law of the state, under which the bank could not bind itself by an accommodation indorsement of notes which it did not own, and in which it had no beneficial interest. In Error to the District Court of the United States for the Southern District of Florida; Rhydon M. Call, Judge. Action by the Commercial Credit Company against the Sponge Exchange Bank of Tarpon Springs. Judgment for plaintiff, and defendant brings error. Reversed. See, also, 253 Fed. 255. James F. Glen and K. I. McKay, both of Tampa, Fla. (McKay & Withers, of Tampa, Fla., on the brief), for plaintiff in error. N. B. K. Pettinghill and M. B. Macfarlane, both of Tampa, Fla. (R. E. L. Chancey, of Tampa, Fla., on the brief), for defendant in error. Before WALKER, Circuit Judge, and GRUBB and JACK, District Judges. WALKER, Circuit Judge. This was an action by the defendant in error, Commercial Credit Company, a Delaware corporation (herein referred to as the Credit Company), against the plaintiff in error, the Sponge Exchange Bank, a Florida banking corporation (herein referred to as the Bank), as the indorser of 13 promissory notes made. to and indorsed by the United Divers' Supply Company (herein referred to as the Supply Company). The Bank pleaded, first, payment; and, second, a plea to the effect that it was never the owner of the notes sued on, and that its president indorsed them in its name solely For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes for the purpose of lending its credit to said notes, which was well known to the Credit Company when it acquired the same. The Bank assigns as errors sundry rulings made by giving and refusing instructions to the jury, including the action of the court in overruling the Bank's motion, made at the conclusion of the evidence, to direct a verdict in its favor. The notes sued on were acquired by the Credit Company in the course of dealings which commenced in pursuance of the terms of the following letter of its vice president: "April 5, 1916. "Mr. A. M. Lowe, President, The Sponge Exchange Bank, Tarpon Springs, Fla.-Dear Sir: Mr. Macrenaris and Mr. Welge called upon us with reference to advancing on the accounts of the United Divers' Supply Co., representing advances for supplies, etc., made to the owners of various boats engaged in the sponge business. These accounts are of a character somewhat out of our regular line and some of our committee are disinclined to handle them for several reasons. It has been suggested that if we will furnish the money required to carry the accounts from the time the supplies are furnished until the catch is sold the transactions can be handled through your bank in a way to insure us against loss. We have expressed our willingness to advance the money under the following arrangement: "The United Divers' Supply Co. to take notes from the various vessel owners for the amounts of their respective accounts, indorse the same, after which you will advance thereon 77 per cent., and in turn indorse them to us for a similar advance. Our charge will be on the face of the accounts at the same rate provided in our contract with the Sponge Divers' Association, namely, one-thirtieth of 1 per cent. a day on the face of the invoices, plus one-half of 1 per cent. on the amount of accounts assigned us: Provided, however, that this one-half of 1 per cent. will be refunded if said volume reaches $100,000 within a period of 12 months. Your own charge would be a matter for adjustment between you and the United Divers' Supply Co. "It would be agreeable to us, should you prefer such an arrangement, that the amount of funds required be deposited by us in your bank, a surety bond to be given us guaranteeing deposits, you then to use the funds in making the required advances to the United Divers' Supply Co. upon the same basis of compensation as outlined above. If there is any other method that you prefer, which would afford us similar protection, we would be glad to receive your suggestion. "Awaiting your further advices, we remain, "Yours very truly, Wm. H. Grimes, Vice President." After the Credit Company had so acquired several notes given to the Supply Company and indorsed by it and the Bank, the latter not giving a surety bond under the option stated in a paragraph of the letter, the following written agreement was entered into: "This agreement, entered into this 8th day of May, 1916, by and between the Sponge Exchange Bank of Tarpon Springs, Florida, party of the first part, and Commercial Credit Company, a Delaware corporation, its successors or assigns, designated as second party, witnesseth: "That whereas, first party, in order to obtain funds necessary to assist the United Divers' Supply Company of Tarpon Springs, Florida, in conducting its operations, desires to sell to second party notes given to the United Divers' Supply Company by its various customers and indorsed to said first party by said United Divers' Supply Company: "Now, therefore, in consideration of the premises, the parties hereby agree as follows: 1 "Second party will from time to time, during the continuance of this agreement, buy such notes belonging to first party as may be acceptable to (263 F.) second party, and will pay therefor one hundred per cent. (100%) of the face of said notes, of which 77% shall be paid in cash upon acceptance thereof by second party, and the remaining 23%, less any deductions and plus any overpayments by the debtors, and less charges hereinafter mentioned to be paid to said first party immediately upon payment of any such note to second party: Provided that no payments of any such remainder shall be made so long as any note purchased hereunder is due and unpaid. "The total compensation to be paid by first party, it is agreed shall be one-thirtieth of 1 per cent. of the face of said notes for each day from date of purchase by and until paid to second party, plus $5 per $1,000 only on the first $100,000 of notes purchased within any 12 successive months' period. Said $5 per $1,000 will be refunded to first party as soon as $100,000 or more of notes have been purchased hereunder within any 12 successive months' period. "In witness whereof, first party has caused these presents to be executed this 8th day of May, 1916. "[Signed] Sponge Exch. Bank, "By A. M. Lowe, President. [Seal] [Seal] "Attest: R. W. Pinholster, Cashier. "Accepted by Commercial Credit Company this 17th day of May, 1916. "By Wm. H. Grimes, Vice President. [Seal] "By S. G. Rosson, Secy.-Treas." The following resolution was adopted by the board of directors of the Bank at a regular meeting on May 2, 1916, a copy of which was sent by the Bank to the Credit Company: "The president presented a proposition from the United Divers Supply Co. as follows: The United Divers' Supply Co. are to take notes from the captains or owners of the vessels for money and provisions advanced them. The United Divers' Supply Co. to indorse said notes to the Sponge Exchange Bank, for an advance of 77 per cent. of their face value, up to the amount not to exceed $30,000.00, and the bank to indorse them to the Commercial Credit Co. of Baltimore, who will reimburse them. The $30,000.00 to be used by the United Divers' Supply Co. to pay all loans now outstanding and to discount bills. Said advances made by this bank to be covered by marine insurance. Every vessel is to settle its note at the end of the current trip, and the United Divers' Supply Co. is to make up any and all shortages that may arise from a poor trip. "Moved by G. E. Noblit and seconded by Walter Topliff, that if the United Divers' Supply Co. signs an agreement covering all of these points and others that may be added before the final closing of the agreement, that the proposition be accepted. Motion carried." The following written agreement was entered into between the Bank and the Supply Company on May 10, 1916, and duly signed: "For the purpose of raising money for conducting their business, the United Divers' Supply Co. agrees to take notes for provisions and cash furnished the sponge boats which they operate, said notes to be signed by the actual owner of the vessel, if possible; if not by the owner, by the captain in charge of the vessel. Attached to each note shall be a bill of the merchandise and cash furnished the vessel, and insurance policy covering such merchandise and cash advance. "It is further agreed that, when these boats come in and sell their catch, these notes shall be the first thing paid, regardless of any other account against the vessel. Should a vessel fail to bring in sufficient sponge on the trip to pay their notes, the United Divers' Supply Co. agrees to make up the shortage. It is understood and agreed that these notes must be paid each trip before any further advances will be made. "In consideration of these notes and agreement, and 1 per cent. commission per annum on sum used the Sponge Exchange Bank agrees to take these notes, which shall bear the indorsement of the United Divers' Supply 24 Co., and indorse them to the Commercial Credit Co. of Baltimore, who will advance 77 per cent. of the face of the note. The Sponge Exchange Bank, however, will not indorse for a sum greater than $30,000.00 advance, and it must be understood that the Sponge Exchange Bank will not under any consideration make any further loans to the United Divers' Supply Co. above this indorsement, unless it is sufficiently covered by satisfactory collateral. "It is also agreed that, upon obtaining this $30,000.00, the United Divers' Supply Co. will pay off all its obligations to the Sponge Exchange Bank, and all other obligations so far as it is possible to do so." There was in evidence a written instrument, dated June 10, 1916, which was duly signed, and purported to be a contract between the Credit Company and the Supply Company and several individuals, who signed as guarantors of the latter Company. That instrument provided for the acquisition by the Credit Company from the Supply Company of such accounts receivable, notes, leases, mortgages, contracts, and choses in action as may be acceptable to the former, and for paying therefor in the same way as was provided for in the contract of May 8, 1916, between the Bank and the Credit Company. That instrument contained a provision authorizing the Supply Company to receive payments on paper acquired by the Bank under it. There was testimony having some tendency to prove that none of the notes sued on were acquired by the Credit Company under the lastmentioned instrument. [1] Undisputed documentary evidence requires the conclusion that there was no material change in the character of the dealings by which the Credit Company acquired through the Bank notes made to the Supply Company after those dealings were commenced in pursuance of the Credit Company's above set out letter of April 5, 1916. The agreement of May 8, 1916, which was in force when the notes sued on were made and indorsed, made no change in the terms governing the transactions, except the immaterial one of referring to the dealings provided for as sales of notes. The nature of a transaction is not determined by the name the parties give it. The letter of April 5th proposed the making of advances by the Credit Company to the Supply Company, through the Bank as an intermediary, on notes given to the Supply Company, indorsed by it and the Bank, and calling for 23 per cent, more than the advances made on them. That it was contemplated that the Bank, except as to its liability as indorser undertaken to be incurred to enable the Supply Company to obtain advances it desired and which the Credit Company was willing to make, was to be a mere intermediary, is indicated by the suggestion in the letter that it might avoid even a very temporary outlay of its own funds by giving a surety bond to protect the Credit Company against loss of amounts deposited by it with the Bank in anticipation of the making of advances through the latter. The Bank was not approached as a prospective borrower. The result of transactions in pursuance of the proposition would be the creation of interest-bearing debts separate and different in amounts from these evidenced by the notes indorsed and transferred. As a matter of law it would follow that the collection by the Credit Company of the amount called for by a note so acquired would not |