I cannot eoncur in the foregoing opinion, and for the following reasons, briefly stated : When this case was here before (29 Mo. App. 644) Hall, J., in rendering the opinion of the court — reversing and remanding the cause for misdirection of the jury — used this language:
“The plaintiff simply testified to an agreement by the defendant to pay certain of plaintiff’s debts, *517including the Dill note, and from this payment, in connection with the time fixed for the maturing of the new note given by plaintiff to defendant, it was to result that plaintiff would have the use of his mules and other property to raise a crop.”
It was held that this was, in so far as it related to the Dill note, simply an agreement to pay it — was an obligation by defendant to pay a particular debt made and owing by Sturgess (at that time the plaintiff). Hence, it was there held that, defendant’s agreement, being simply a contract to pay a particular debt, the measure of damages was the amount of such debt with interest — nothing more, nothing less. That such is the well-settled law, on such a state of facts, is shown by the authorities there cited by Judge Haul. Now it seems to me the circuit judge has done nothing more, at the second trial of the case, than to pursue the law thus declared, and that no error was committed by a rejection of the evidence tending to show other and further damages than the amount of the Dill note and interest thereon.
The abstract now before us, as prepared by appellant, makes this statement of the same witness’ testimony at the second trial: “Witness further stated that the consideration for said note and deed of trust so executed by him to the defendant was to pay off all his indebtedness aforesaid and prevent his creditors from recovering judgment against him and selling his property under execution, and give him the use of his stock during the cropping season of 1886. ”
The only difference between the evidence at the last trial and that of the same witness at the first trial is, that at the first hearing Sturgess testified to an agreement by defendant to pay the several debts owing by him (Sturgess) so as to protect his property from judgment and execution, while at the last trial Sturgess swears, in substance, that defendant agreed to pay such *518debts, and thereby, as a necessary result, prevent judgments and executions against his property.
The word thereby is not used, though it would seem clearly so understood. It is clear to my mind from Sturgess’ testimony that defendant’s undertaking was simply to pay certain specified debts, then owing by Sturgess, which aggregated just four hundred and fifty-three dollars, the exact amount of the note of Sturgess to defendant. The defendant failed to pay the Dill note (one of the debts thus agreed to be paid) and therefore should be held in this action for the amount of such debt and interest and nothing more.
The ruling of the circuit court was in accordance with this view, and in my opinion its judgment should be affirmed. Judge Ellisow concurs in this opinion, and the judgment of the circuit court will therefore be affirmed. It is so ordered.