The court seems to have ignored the first defence set up in the answer, based upon the neglect of Melone & Epperson to notify the defendant of the failure of Sidell to pay the original note executed by him and defendant. The defendant urges that defence upon this court and makes it necessary for us to determine whether it is maintainable. The defence is not maintainable. The instrument in suit is.an absolute promise to pay the amount, with interest and costs, mentioned therein. In su ch case no notice was required to be given to the defendant of Sidell’s failure to make such payment. Wright v. Dyer, 48 Mo. 526.
If Melone & Epperson obtained judgment against Sidell before a justice of the peace upon the original note, “had the transcript of the same filed in the circuit court and ordered execution thereon in the hands of the sheriff of Knox county, who, at their instance, or attorney’s, seized and levied upon sufficient personal property of Sidell with which to pay it off,” and the sheriff then released and abandoned the levy, as hypothetically stated in the instruction given of the court’s own motion, then the defendant was not liable in this case.
The levy was, prima facie, a satisfaction of the judgment, and if the levy was in fact made as stated, i. e., by the sheriff, at tbe instance of the judgment creditors, the release of it by them through their officer, the sheriff, was, as to the defendant,' a satisfaction of the judgment, and a payment of the original note within the meaning of, and in compliance with, the condition of the instrument in suit. The rule on this subject is thus stated by Mr. Freeman, in his work on Executions: “In general, so far as the rights of third persons are concerned, whether they are sureties, *420or the holders of junior liens, or otherwise interested in the discharge of the writj the levy upon goods is a satisfaction of the judgment to the extent of their value, unless plaintiff is deprived of the benefit of his levy without any fault, neglect, or indulgence on his part, or on the part of the officer.”
But if, ■ on the other hand, the acts stated, i. e., the acts leading up to the levy and the making of the levy, were done, as stated by Epperson, by the defendant, with the consent of the judgment creditors, but wholly for his own benefit and at his own risk; if, in other words, the judgment was, so to speak, loaned by the judgment creditors to the defendant to be used by him in an effort to protect himself, and was -so used, then the judgment creditors cannot be deemed to have made the levy or to have released it. In such case the levy was made by the defendant, was released by the defendant’s officer, and the judgment creditors were not responsible therefor.
It may well be doubted whether there was sufficient evidence on which to submit the question as to whether the judgment creditors had procured or released the levy, but waiving that, it is clear that the judgment must be reversed. The plaintiff asked and the court refused to give the following instruction to the jury :
i‘9. If the jury believe, from the testimony, that Powell undertook to manage and conduct the collection of the judgment against Sidell alone, without the interference of Melone & Epperson, but failed in the collection thereof, then it matters not what the cause of the failure to collect the same was, he cannot plead the same as a bar in this suit.”
This instruction, or its substance in .some form, should have been given, so as to have submitted to the jury the question as to who procured the levy, as just explained, the defendant or the judgment creditors.
Judgment reversed and cause remanded..
All concur.