(after stating the facts).— We are compelled to reverse this case. ' It is claimed that the defendant could set up his counterclaim, although his former partner is dead and was not represented in th¿ case, and that he can do so by virtue of the laws of our State, which it is claimed are presumed to be the law in Arkansas, the contrary not appearing, as surviving partner. But defendant does not counterclaim as surviving partner, but in his own right. One or more of the instructions abOA7e noted submits the case to the jury on the distinct charge that before they can find for the defendant they must find “that an agreement existed between him and defendant.” The only agreement in evidence is the one set out in the answer. That is not an agreement betAveen plaintiff and defendant but between plaintiff on the one side and defendant and Mitchell on the other. That instruction is contrary to the evidence and to the ansAver itself. There is no allegation in the answer which in any Avay suggests that defendant is setting up a counterclaim as surviving partner; he purports to sue in his own right, and other of the instructions asked by him are directly opposed to this theory of a contract between him and’plaintiff. Other instructions given at defendant’s instance are founded on the theory that he is entitled to recover, not *642all of the damages, but one-balf thereof, and for damages sustained by him, not by his firm. That this action cannot fall under the rule of a set-off is very evident. To constitute a set-off the demand must be in the nature of a debt, and the term debt, is defined by most of the appellate courts of the country. Judge Broaddus, in Scarritt Estate Co. v. Schmelzer Arms Co., 110 Mo. App. 406, l. c. 412, very clearly demonstrates that section 4491, Revised Statutes 1899, does not include a claim for unliquidated damages. Speaking for the court, Judge Broaddus further holds that under the statute, a set-off cannot be a counterclaim or vice versa, and that the courts of this State have recognized the distinction between the two, and that section 4491 is applicable alone to set-offs and does not apply to counterclaims. Indeed, counsel on each side of the case at bar concede that defendant’s demand, if available, is available as a counterclaim and not a set-off.

It is urged by the learned counsel for the plaintiff, in opposition to the right of defendant to recover, that there is a nonjoinder of parties. That defense is only available when raised either by plea or demurrer. It has been so decided in many cases.

The error in this case is in the instructions. At defendant’s instance, the jury were instructed that he was entitled to recover one-half, up to a certain amount and under certain circumstances. This was, in effect, splitting up the cause of action. Defendant does not pretend to sue as surviving partner and so as representative of his firm. A judgment rendered here could not be plead by plaintiff against the representatives of the surviving partner. Allowing the defendant to recover one-half as his share and leaving the representatives of the deceased partner to recover the other, exposes plaintiff to an action by the representatives of that deceased partner or even by defendant as surviving partner administering the partnership effects. Moreover, defendant’s instructions are conflicting and confusing. In *643one the jury are told defendant can recover only for one-half — in others, that he can recover the full amount under certain circumstances. These are hound to confuse the jury. With such instructions and on the verdict, it is impossible for us to determine on which theory the jury acted. Another erroneous instruction is that relating to the measure of damages. The jury were told, after being specifically directed as to damages in evidence, that they might also award him “any other damage you may find defendant sustained which was directly caused by plaintiff’s breach of said contract.” This was error. The damages must be confined to the damages plead and proven by the evidence as arising from the breach — not any damages the jury may find outside of those plead and in evidence.

As the case will have to be retried, we do not care to comment upon the evidence nor on the instructions any further than, we have here done. We cannot possibly anticipate what testimony will be in the case if again tried. The judgment of the circuit court is reversed and the cause remanded.