| Mo. | Aug 15, 1871
delivered the opinion of the court.
The plaintiff acquired the note in suit after its maturity, and consequently took it subject to all equitable as well as legal defenses the makers might have against it. The defendant in this action was a surety.
1. The evidence in relation to the notice to sue was properly excluded, since the notice proposed to be shown was not in writing, as the statute requires. (Gen. Stat. 1865, p. 406, § 1.) Even at common law, according to Judge Scott, “ a mere request by the surety to bring a suit was not binding on the holder, and his neglect to comply with such request did not release the surety.” ’(Eouton v. Lacy, 17 Mo. 400.)
2. The defendant asked the court to instruct that “ if the defendant counted out lightning-rods to the value of the unpaid balance of the note sued on, and the plaintiff was present and accepted said rods in discharge of such balance, the jury should find for the defendant.” This instruction was refused, but upon what principle I am unable to conjecture. There was evidence on which to found the instruction, and I think it should have been given. If the defendant tendered to the plaintiff the rods, and the plaintiff accepted them in satisfaction of his debt, the debt was thereby discharged. The transaction constituted an accord and. satisfaction.
3. The note was payable to one Smith, and grew out of transactions between him and one Boone, Boone being the defendant’s principal on the note. The defendant sought to recoup damages growing out of an alleged failure of consideration and breach of contract between Smith and Boone. The contract formed the basis of the note transaction. The note grew out of the contract and was executed in pursuance of its stipulations. The question of recoupment, therefore, should have been treated as though the suit had been upon the .contract itself. (Batterman v. Pierce, 3 Hill, 171; and see Grand Lodge v. Knox, 20 Mo. 433" court="Mo." date_filed="1855-03-15" href="https://app.midpage.ai/document/grand-lodge-of-masons-v-knox-7999483?utm_source=webapp" opinion_id="7999483">20 Mo. 433.) The court, at the instance of the defendant, instructed the jury in accordance with this view, and was so far correct. But the court Was wrong in telling the jury, in effect, that the sale by Smith to
With, the concurrence of the other judges, the judgment will be reversed and the cause remanded.