delivered the opinion of the court.
The respondents sued the appellants in the St. Louis Circuit 'Court, upon an account stated, for a number of plows sold and delivered to them, and alleged to be worth the sum of nine hundred and seventy-three dollars and fifty cents. The answer admitted the sale and delivery of the plows, but denied that they were worth the amount claimed, and alleged a special contract with the respondents which would entitle them to a deduction from that amount of thirty per cent. It then proceeds to set up separately two distinct counter claims. The first was for damages for the breach of a contract alleged to have been entered into between the parties to the suit in the month of January, 1863, by which the respondents undertook and agreed, upon the terms and conditions therein stated, to furnish all the plows of their manufacture which the appellants might want in their business, and as they might from time to time order, so long as they should comply with the -conditions stated and desire to continue such business with the respondents.
The second counter claim was for damages'for an alleged breach <of a special contract for the delivery of 661 plows bought in the month of November, 1865. To this there was a reply denying the new matter set up by way of counter claim.
The court refused to give a portion of the instructions asked by the defendants; and the points submitted for our consideration arise upon the ruling of the court both as to the declarations of law given for the plaintiffs, and those refused on the part of the defendants. Upon the giving of the instructions, the defendants, by leave of the court, withdrew their counter claims entirely, thus leaving the jury to find simply the value of the plows stated in the account. It was shown by the evidence that in the month of January, 1863, at the time of making the alleged contract, Charles H. Deere was carrying on the business by himself. The court told the jury that if the other plaintiff, John Deere, was not then a member of the firm, the contract was not binding upon *63him. This was not objectionable. It accorded with the plaintiffs’ theory of the case. The defendants’ theory was that the testimony tended to show that John Deere, after becoming a member of the firm in 1864, had assented to this contract by acting upon it, and was therefore bound by its terms. We think this question ought to have been left to the jury upon a proper direction by the court. It is true the defendants asked an instruction based upon that theory, but it was not simple enough in its form to present accurately to the minds of the jurors the precise question to be determined, and no error was committed in refusing it. ■
As to the second ground of counter claim, we think it is manifest, upon an examination of the testimony, that the court erred in saying there was none at all tending to prove it. It ought to have been left to the jury to say whether there was a contract for the sale and delivery of the 661 plows, and, if so, what damage ■ the defendants had sustained by the alleged breach of it.
We find nothing improper in the other instructions given for the plaintiffs; but, for the errors herein stated, the judgment of the Circuit Court must be reversed, and the cause remanded for further trial, in accordance with this opinion.
The other judges concur.