We think the second instruction, as asked for the defendant, should have been given to the jury, and that the instruction given by the court, in lieu of it, did not enable the jury to comprehend the law as applicable to the evidence in the cause.
It appears that the defendant and A. 0. Dickson, one of the plaintiffs, had been in the lumber business, as partners. When that partnership was dissolved, the assets of the firm went into the hands of the plaintiffs, who formed a new firm and carried on the same business in the same place. After this, the plaintiffs admitted an indebtedness to the defendant, to one witness, of four hundred dollars, and to another, of five hundred dollars, and requested the plaintiff to take it out in lumber, and after this the lumber, for which this action was brought, was obtained. In this state of the evidence the defendant asked this instruction :
“ If the jury believe, from the evidence, that before any of the account of the plaintiffs accrued, the plaintiffs acknowledged their indebtedness, in the presence of William B. Warren, to the defendant, William M. Warren, in the sum of five hundred dollars, for lumber or money received by them, or for both; and if the jury believe, from the evidence, that the plaintiff requested the defendant to purchase lumber of them, promising that whatever was obtained should be applied upon said five hundred dollars, and that said lumber obtained by William M. Warren was obtained with this understanding; this is competent and proper evidence upon which the jury may find a verdict for the defendant, William M. Warren, for such part of said five hundred dollars and interest as they find to be due after deducting the lumber obtained under the aforesaid arrangement.”
Which the court refused to give, but instructed,
“ If the jury believe, from the evidence, that on the dissolution of the firm of Dickson & Warren, Dickson was indebted to Warren, and that afterwards Dickson, the former partner of Warren, formed a partnership with his son, John H. Dickson, in the lumber business, and in the presence of his son admitted said indebtedness, and requested Col. Warren, the father of defendant, to tell him to send and get lumber, and that the lumber was accordingly got under tl^at arrangement, without objection on the part of John H. Dickson, then they will find for the defendant.”
This instruction is not as broad as the first, and does not cover a state of facts which the jury might well have found from the evidence. The jury would have been warranted in finding that the new firm had purchased the interest of the defendant in the assets of the old firm for the amount which they acknowleged to be due him; or, that the assets of the old firm had come into the hands of the new firm, and had by them been converted into cash, and upon an accounting with the defendant there was found the amount stated to be due him, for his interest, which they agreed to pay him; and in either of these cases the amount thus stated, constituted an individual claim of the defendant against the plaintiffs, as much as if it had been money loaned, and as such constituted a proper claim for set-off, under the pleas which had been filed. This is the case contemplated by the instruction asked for the defendant and refused by the court, and is not embraced in the instruction given by the court."
The judgment must be reversed, and the cause remanded.
Judgment reversed.