delivered the opinion of the court.
This suit was brought to the September term, 1861, of the Circuit Court. The petition states “ that on the 1st of November, 1858, plaintiff loaned to the firm of Charless, Blow & Co., then composed of Joseph Charless and the defendants, the sum of three thousand three hundred and seven dollars *491and fifty cents, for twelve months, at ten per cent., and took the firm’s note therefor, signed Charless, Blow & Co. That Charless died in 1859, before the note was due, and that in June, 1859, the defendants were appointed his administrators. That in November, 1859, when said note became due, the defendants, still doing business under the style of Char-less, Blow & Co., renewed the note aforesaid, by giving a new note for the principal and interest, amounting to $3,638.25, with same rate of interest, and signed Charless, Blow & Co. ; and that the old note was delivered up to the defendants. That in March, 1860, plaintiff loaned to said Taylor and ¥m. T. Blow, on their own account, the sum of $1170, for which they gave him their promissory note, signed Charless, Blow & Co., on demand with interest. That this note was paid except a balance of $116.89. That in November, 1860, when the large note became due, it was agreed that the same should be renewed for six months longer, and that a note for principal and interest, and including also the balance of $116.89, due on said small note, should be given therefor, making altogether the sum of $4,118.96, with interest from date at ten per cent. That such note was given, the same being filed, and the old notes given up to the defendants. Plaintiff further avers that the said notes thus given were renewals of the old note, and intended to hold the old firm composed of Joseph Charless and defendants, and that they were not taken in payment and satisfaction of the said first note, nor of the second note.
The answer of the defendants admits the old firm as composed of Joseph Charless and themselves, when the first note was given, and admits the death of Charless and their appointment as administrators, as alleged. It also admits that such notes were given and the old ones surrendered, as alleged, but denies that they were given as renewals or were so intended or agreed by the parties, and avers that they were given in payment and discharge, the one of the other, and that the plaintiff had full knowledge of the death of Charless when the first note became due, and that he took *492the note of the defendants in payment of the old note against the estate of Charless and themselves.
If is in proof by Turner, the book-keeper of defendants, that plaintiff was frequently in the defendants’ store, and knew of the death of Charless when the note of November, 1859, was given, and that the firm of “ Charless, Blow & Co.” was composed only of the defendants; that new books were opened by the defendants after the death of Charless, and an account opened with plaintiff, and the new notes credited as cash, and also entered under the head of bills payable; that nothing was said about the old firm when the new notes were given, and plaintiff was not present when the entries were made in the books, and there was no evidence that he had any knowledge about the books ; that the note of $1170 was partly paid by cash and partly by goods from the store, and the balance, $116.89, put into the last note. The notice of the dissolution of the old firm by the death of Char-less, and the formation of the new, as published in the “ Missouri Republican,” was also in evidence. There was no other evidence in the case.
The court then gave the following instructions for the plaintiff:
1. It is for the jury to determine from the evidence whether the notes of November 1, 1859, and November 1, 1860, or either of them, were given to and accepted by the plaintiff in satisfaction or extinguishment of the original note of Charless, Blow & Co.; and should they find from the evidence that neither of them was so given and accepted, but that it was the intention of the parties that they should both operate merely as a renewal or in continuance of the original loan to the old firm of Charless, Blow & Co., they will find for the plaintiff, notwithstanding the two notes were given up, and the plaintiff was aware at the time of the decease of Joseph Charless.
2. Unless the jury find from the evidence that it was intended between the plaintiff and Taylor Blow and Wm. T. Blow, that the notes of November, 1859, and 1860, or one of *493them, should operate as a satisfaction or extinguishment of the original note of Charless, Blow & Co., they will find for the plaintiff.
3. If it was intended by both plaintiff and defendants that the notes of November, 1859, and November, 1860, should operate merely in a renewal or as a continuance of the original loan to the firm of Charless, Blow & Co., and not. in satisfaction or as as an extinguishment of said original note, they will find for the plaintiff.
To the giving of the foregoing instructions, the defendants excepted.
The defendants then asked the following instructions, which were given:
1. If the plaintiff after he knew of the death of Joseph Charless loaned money to the surviving partners doing business as a new firm under the old style, he cannot recover such money of the estate of the deceased.
2. That if the plaintiff took the note of the new firm after he knew of the death of Charless, partly for money actually advanced to the new firm and partly for the debt due him from the old firm, and if he in so doing intended to make the whole a loan to the new firm, and to take the new notes in extinguishment and satisfaction of the original note, he cannot recover any part of it from the estate of Joseph Charless.
And the following instructions, which were refused:
3. The death of Joseph Charless was a legal dissolution of the partnership of Cliarless, Blow & Co.-, as existing before his death, and the renewal of a note due from the old firm by the surviving partners would not bind the estate of the deceased, if the creditor had knowledge of the death of such other partner, though said note was signed with the style of the old firm.
4. That the taking of the new notes as specified in the petition, and the giving up of the old notes after the dissolution of the firm by the death of Charless, and after that death was known to the plaintiff, is in law a discharge of the old firm unless shown by other testimony not to have *494been so intended, and the burden of proof is on the plaintiff to show that it was not so intended.
5. That if the plaintiff knew that Taylor and William T. Blow were doing business as a new firm under the style of Charless, Blow & Co., by taking their note for a debt, including partly money due him from the new firm after the death' of Oharless, the presumption of law is, that the plaintiff took it as the note of the new firm, and to entitle the plaintiff to recover he must rebut such presumption by proof to the contrary.
6. That executors of an estate, though surviving partners of the deceased upon whose estate they are executors, have no authority in law to give a note in the name of the old firm binding the estate of the deceased, unless such authority has been expressly given to them by the terms of co-partnership.
7. The giving up of the note of the old firm of Oharless, Blow & Co., and the taking therefor the note of Taylor and Wm. T. Blow, under whatever style, was in law a payment of the note of the old firm, unless the contrary intention is proved by testimony in the case.
8. That the taking of the note on time of the surviving partners after the dissolution by. death was known to the plaintiff for .the debt of the old firm, was a giving delay of payment which discharged the estate of the deceased partner.
Defendants excepted to the refusal of these instructions. A motion for a new trial was filed and overruled, and a bill of exceptions filed.
After the death of Joseph Charless the surviving partners could not bind his estate by note or bill, and the plaintiff does not seek to hold it liable upon the new note but only upon the original debt ; and the question presented is whether the liability of his estate for the original debt was discharged by the plaintiff’s acceptance of the new note made by the surviving partners and his surrender of the old note. The new note was not properly a renewal of the old note, because it did not bind all the persons who were bound in *495the first note. And the question whether it is such a substitute for the old note as to extinguish it is a compound one of law and fact.
The only two cases decided by this court which are thought to have any bearing upon the question, do not in in reality affect it. The case of Patterson v. Camden, 25 Mo. 18, was upon a bill drawn by one partner after the dissolution of the partnership, the original debt being barred by limitation. And in the case of Yarnell v. Anderson, the creditor who received the note of one of the partners, expressly stipulated that it should be satisfaction of the original note “ when paid.”
Decisions in other States, and in England, appear to have been somewhat conflicting; but the best authority now seems to be, that a creditor of a partnership may, by an agreement upon a new consideration, {and a new note is a .-sufficient consideration,) accept the responsibility of one or more partners in lieu of the firm’s liability, and thus discharge the other partners. Whether there be such an agreement, express or implied, is a question of fact, to be determined by a jury upon a consideration of all the circumstances. (2 Parsons on Notes and Bills, 199 et seq., and cases in the notes.) Where upon the execution of the new note the old note is given up, this fact is entitled to great weight with the jury, but does not raise a legal presumption of an agreement to extinguish it and discharge the liability of the other partner. Nor in the absence of an express agreement is it competent for the court to instruct the jury that any fact or facts alone and unconnected with a consid-' eration of the intention or animus of the parties, will constitute an agreement. The burden of establishing the alleged agreement for the extinguishment of the old note, devolved upon the defendants who set it up.
The ease was tried in the lower court in accordance with these principles, and its judgment is affirmed.
Judges Bay and Dryden concur.