(аfter stating .the facts). — 1. The. ■court gave the following instruction for plaintiff:
“1. The court instructs the jury that in this case it is admitted that the defendants Allen, Stark and Forsythe executed the bond sued on and read in evidence ; that the action in which the attachment was sued out has been finally determined; that the attachment -under Avhich relator’s property was levied upon has been finally determined in relator’s favor and the attachment ■dissolved, and the only matter for the jury to determine in relator’s suit is the amount of damages, if any, which he has sustained in defending such attachment, and in
Defendants contend that the instruction .does nоt limit the damages to securing a dissolution of the attachment, but includes the defense of the entire suit. The instruction will not bear this construction. Only the attachment suit is anywhere mentiоned in the instruction, and to find there was another branch of the suit, or to allow plaintiff compensation for attorneys’ fees, etc., expended in the defense of the main suit, the jury would have to go outside of the instruction. Plaintiff’s evidence tends to show that $250 was a reasonable attorney’s fee for defending the attachment, but there is no еvidence showing or tending to show that he had paid, or had contracted to pay, his counsel any stipulated sum as a fee. For this reason defendants contend the court should not have submitted the assessment of any attorneys’ fees to the jury. In a suit on an attachment bond, a plaintiff is entitled to recover reasonable attorneys’ fees in the defense of the attachment. [Kelly v. Beauchamp,
“4. The court instructs the jury that if you find from the evidence that after the note declared on in defendants’ counterclaim, dated May 15, 1893, was delivered to L. L. Allen for Allen, Stark & Co., the same was Avhile in the pоssession of said Allen, altered at his instance by writing the name- of W. H. Smith across the back thereof, and that such alteration and-writing was without the consent of relator Shipman thеn defendants cannot recover on their counterclaim and your verdict should be for relator and against defendants on such-counterclaim.”
And refused the following asked by defendants:
“8. The court instructs the juiy thаt if they believe from the evidence in this case that after the delivery of the note described on the first count of defendants’ counterclaim, being the note read in еvidence for $450, dated the fifteenth day of May, 1893, and executed by Wm. H. White, the principal, to Allen, Stark & Co., said note was signed on the back thereon by one W. H. Smith at the request of L. L. Allen, or Allen, Stark & Co., then said Smith Avas in law a guarantor, and said note was not changed or altered and did not release plaintiff there-from.”
By writing his name on the back of the note after its delivery to payees, Smith became bound only as a guarantor. His signature did not alter the note and his obligation was separate and distinct from that of the makers. [Corbyn v. Brokmeyer,
“3. The court instructs the jury that if you find from the evidence that the note declared on in the defendants’ cоunterclaim, dated May 15,1893, was paid by William S. White by delivering to L. L. Allen for Allen, Stark & Co., a note for even amount dated November 15, 1893, signed by Wm. S. White and others, and that said Allen acceрted such notes for Allen, Stark & Co., and was authorized to do so in lieu of and in payment of said note dated May 15, 1893, then your verdict will be in favor of relator and against defendants on their counterclaim.”
And refused the following asked by defendants:
“The court- instructs the jury that under the pleadings and evidence in the case the note sued on in this action was not paid with the note signed by W. S. White, J. W. Shipmаn, George Davis and others and delivered to L. L. Allen by W. S. White.”
Ordinarily, nothing but money will satisfy a debt, but a creditor and debtor may agree on some other medium of payment and if, as Allen swore in his deposition, he took the renewal note in payment and satisfaction of the old one and marked it “paid” across, its face, the makers of the old notе were discharged from all liability thereon. But as relator, in his answer to the counterclaim stated facts inconsistent with the idea of any intention of the maker of the notе to deliver it to Allen this instruction was opposed to the issues as made by the pleadings and should not have been given.
4. Defendants asked the following instruction, which the court rеfused:
“The court instructs the jury that if they believe from the evidence in this case that plaintiff Shipman on or about the months of February or March, 1901, moved with his family to the Indian Territory, and did not move back to Missouri until about July, 1905, then the court
If the plaintiff moved Avith his family to Indian Territory, in February or March, 1901, and resided there or elseAvhere out of the State of Missоuri, until July, 1901, when he moved back to this State, the note Avas not barred, as to him, by the ten-year Statute of Limitations. The instruction, ho-Avever, ignored tbe fact of residence in the territory or elseAvhere, and for that reason was properly refused. What is meant by residence, Avithin the meaning of the Statute of Limitations, is a mixed question of law and fact and should be defined by instructions to the jury. The second clause of the section (E. S. 1899, sec. 4282), upon which the instruction was intended to be based, provides: “And if, after such cause of action shall have accrued, such person (defendant) depart from and reside out of the State, the time of his absence shall not be deemed or taken as any рart of the time limited for the commencement of such action.” In Miller v. Tyler,
5. As before stated, the firm of Allen, Stark & Co., was composed of L. L. Allen, L. L. L. Allen, J. F. Stark, J. Forsythe and A. Forsythe. The attachment suit was brought by the firm. The attachment bond was only executed by L. L. Allen, A. Forsythe and J. F. Stark. On motion of defendants and of L. L. L. Allen and J. Forsythe, the latter two, over the objection of plaintiff, were made parties defendant and were, with the other defendants, рermitted to plead the set-offs hereinbefore mentioned. If this was error, then the judgment should be affirmed, notwithstanding the errors noted above. A partnership debt cannot bе set off against a debt due by an individual member of the partnership. [Lamb v. Brolaski,
For errors herein noted, the judgment is reversed and the cause remanded.