majority">Bay, Judge,

delivered the opinion of the court

The petition in this case alleges that the plaintiff and defendant executed their joint promissory note, dated July 27, 1860, whereby they promised to pay, ninety days after date, to A. Holmes or order, the sum of $222.33, for value received, negotiable and payable without defalcation or discount; that said note was given on account of the joint indebtedness of the parties, each being liable to pay one half thereof, and that, about the time of its maturity, plaintiff, in the absence of defendant, paid off and discharged said note in *425full, and defendant promised to pay plaintiff one half thereof with interest, &c.

The answer contains much matter that is redundant and superfluous, and which may be regarded as surplusage ; it however denies that the consideration of the note was the joint indebtedness of plaintiff and defendant, and charges that it was given for lumber purchased for and on account of Rock-house Prairie Church, in Buchanan county. That plaintiff, defendant, and one Edward Miller, were appointed at a meeting of the members of said church, a building committee, whose duty it was to provide materials and cause a house to be erected as a place' of public worship, and that the same was to be paid for by subscriptions, &c. That in pursuance of said duty, said plaintiff and defendant purchased said lumber and gave said note therefor, having full faith in the ability of the church to pay the same, and with the understanding that the same would be paid out of funds raised by subscriptions as aforesaid. That said plaintiff was appointed by said committee treasurer, and received subscriptions, paid off debts, &c.; and out of said subscriptions paid the note in question, and afterwards, at a meeting of the members of said church, presented a demand in which he claimed a balanee of one hundred dollars, among the items of which demand is the note sued on, and that said church acknowledged said indebtedness and agreed and promised to pay the same, and that plaintiff accepted such church as his debtor. The answer further states that plaintiff had in his hands an amount belonging to said church sufficient to pay the amount of said note, and out of the same he did pay, or reimbursed himself for the amount of said note.

The evidence given upon the trial was somewhat conflicting and far from being distinct in reference to the facts; but they tended to prove that after the payment of the note by plaintiff, he had a settlement with the church in which he claimed as a balance due him an amount much less than the note. Whether or not the note was included in the settlement is left in doubt by the conflicting testimony of the *426witnesses. The testimony also tended to show that he received funds from the church or its agents, which he applied to said indebtedness. Among others, a witness by the name of Wright paid him from $15 to $25 on account of said church.

The court, at the instance of plaintiff, gave three instructions, the first of which is as follows :

1. The court instructs the jury that they will find for the plaintiff one half the note sued on, unless they believe from the evidence that the same has been paid to, or refunded to, plaintiff by the Kock-house Prairie Church or defendant.

This instruction is manifestly erroneous, for it confines the jury in their finding to a particular sum, thereby excluding from their consideration all credits or partial payments. Suppose the church has reduced its indebtedness to plaintiff, including the note, to $100 ; certainly the plaintiff could have no cause of action against the defendant exceeding the sum of $50, with interest. But even in that case the instruction would require the jury to find an amount not less than one half of the face of the note.

The second and third instructions were also erroneous ; but the defendant cannot complain of them, as the error enured to his benefit. The second assumes that if the church promised in writing to pay the debt due plaintiff, that such promise operated to discharge the defendant. This is not the law. The assent of the plaintiff to such discharge must also be shown. The third is erroneous because it does not present the true measure of damages. If any payment was made upon the note, the defendant is only entitled to the benefit of one half thereof, instead of the entire amount of such payment. The objection which has been shown to plaintiff’s second instruction, applies with equal force to the first and third instructions of defendant, and the court very properly refused to give them.

For the error, therefore, in the first of plaintiff’s instructions, the judgment will be reversed and the cause remanded;

Judge Dry den concurring.

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