¶1delivered the opinion of the court.
¶2The defendants in error, who were executors of the estate of Abraham Buford, deceased, sued Wesley and James Hill in assumpsit, upon a special contract, and recovered a verdict and judgment for $375 74; which the said W. & J. Hill now seek to reverse.
¶3The facts, as preserved by the record, appear to have been these : On the 10th June, 1840, the plaintiffs in error executed the following instrument, which is the foundation of the present suit: {£Be it remembered that Abraham Buford, sr., and Samuel Hill, both of Ralls cou.'.ty, Missouri, is indebted to the bank of Missouri, at St. Louis for $800, or thereabouts, amount not recollected precisely, which debt is a joint one between the parties aforesaid; and the said Samuel Hill, for the purpose of securing the said Buford from loss on account of the note aforesaid, placed in the hands of Mr. Hays a note which he held on the said Bu« ford, for $333 1-3; now the said Hill wishes to withdraw the said note out of the hands of the said Hays, and for that purpose we do bind ourselves to secure and keep safe the said Abraham Buford from all loss or damage he may sustain on account of the proportion of said note which the said Samuel Hill would be bound to pay — provided the sai note i-; given up to the said Samuel Hill, which is in the hands of the said Hays. Witness our hands, &c , this &c., Wesley Hill James Hill.” the note of 4. Buford, sr., in the hands of Hays, was given up in pursuance of the above agreement. It appears that the note of S. Hill and S. Davis, endorsed by Abraham Buford, sr., for one thousand dolíais, was discounted by the bank at St. Louis, on the 15th January, 18afc; . .at it was renewed from time to time until it was reduced to the *862sum of $562, when it was forwarded to the branch bank at Palmyra, where, upon its maturity, Abraham Buford, jr., became endorser instead of A. Buford, sr., and this note matured 29th May, 1841. Two suits were instituted by the bank upon tins note, one against Abraham Buford, jr., the other against Samuel Hill and Simeon Davis; and judgment obtained in both suits; $4.35 was paid by A. Buford, jr., and $204 93 was paid by Major Hays. Letters of administration had been granted on the estates of A. Buford, sr., deceased, on 20th October, 1840, to Alexander and Abraham Buford, jr., the defendants in error. The amount paid by Davis, (through Major Plays), was allowed by the county county against the estate- of A. Buford, sr., deceased, $215 46.
¶4Objections were taken in the progress of tho cause to the compel ency of the evidence which was introduced, and to the relevancy of a portion of it. When the plaintiffs had closed their testimony, the defendants asked the court to instruct as in case of a non-suit, but the court refused so to decide the law. The defendants then applied for several instructions, in substance declaring the law to be, that if the note mentioned in the contract sued upon, was taken up by the renewal of a note upon the credit of Abraham Buford, jr., in place of A. Buford, sr., the plaintiff; could not recover.
¶5This was an express contract on the part of W. &. J.. Hill, that they would “secure and keep safe the said Abraham Buford, sr., from all loss íw damage ho might sustain,” on account of his liability for Samuel Hill'to bank debt. The contract was a written one, and founded on sufficient consideration, and the only question in this suit seems t s, whether the said A. Buford, sr., has sustained any loss or damsg by reason of Iris said securifyship, for the debt of said Hid. It appears that hr 1840, .Abraham Buford, sr., died, and that shortly after his death his son and executor of his will, Abraham Buford, jr., substituted a noto, endorser' by himself, for the note endorsed by] his .father; Samuel Hill and Simoon Davis Iming on the second note as the makers thereof, as they had bren on the first. This second note was col'ecird hy >l«e bank, and tho entire a.mount, paid by A. Buford, j-.\, and vh • '-st-t j of A. Buford, sr.; the amount paid by Davis bad been a (lowed by the county court against the estate, though there was no evidence at ’he trial to show that, tho amount paid by A. Buford, jr., ‘rad been allowed in the settlement ol hi-; »> count as executor of the estate of his deceased father.
¶6If Abraham Buford, jr., ■- d Simeon Davis had been mere volunteers, and not otherwise, connect will the transaction, except so for asthey are seen renewing the 'lot Samuel Hill and Abraham Buford, sr., *863no assumpsit would arise in tbeir favor against the securities of S. Hill. But we think the jury were well warranted from the facts, that A. Buford, jr., was the executor of his father’s estate, and that Simeon Davis was on the original note, in inferring that this substitution of the hew note of A. Buford, jr., and S. Dayis, for the old note of A. Buford, sr., was done for the benefit of the estate of A. Buford, sr., and at the request of the executors who managed the interests of that estate.
¶7So far as the amount of 0215 46, which was paid by Davis, is concerned, that was allowed against the estate of A- Buford, sr., by the county court, and though no allowance was proved to have been made in the settlement of the administration account, by the executors, of the amount paid by A. Buford, jr., yet it was manifestly a payment on behalf of the estate, and therefore chargeable against the same.
¶8The other Judges concurring, judgment affirmed.