delivered the opinion of the court.

Siter, Price & Company, plaintiffs below, brought an action in as-sumpsit against Benoist & Hackney, on the common money counts, in the St. Louis court of common pleas, returnable to the November term, 1842. The defendants pleaded non-assumpsit, and the cause was tried on that issue, on the 3d October, 1844, when a verdict and judgment *653were given in favor of the plaintiffs for $2688 98, from which the defendants appealed to this court.

A motion was made in the court below, to set aside the verdict, because it was against evidence, against law, against the weight of evidence; because the court gave improper instructions and refused to give instructions asked for by the defendants; because the damages were excessive and not warranted by the evidence, and that the court improperly excluded evidence offered by the defendants. ' This motion was overruled by the court and the defendants excepted.

It appeared in evidence on the trial in the circuit court, that Benoist & Hackney were exchange brokers in large business in St. Louis, with whom one John J. Anderson, at that time a merchant in St. Louis, was in the daily habit of business in their line, and of getting notes discounted; that on the 18th January 1842, said Aderson got discounted with the defendants a note of the following tenor:

“$2437 96

“Philadelphia, Jan. 13, 1841.

“Thirteen months after date, we promise to pay to the order of Siter, Price & Co. twenty» four hundred and thirtyrseven dollars 96 cents, with the current rate of exchange on Philadelphia, negotiable and pay-ablo at the office of the St. Louis Perpetual Insurance Company, without defalcation for value received. P. E. Blow & Co.”

On which were the following endorsements :—

“No. 8163.

P. E. Blow & Co. $2437 96.

Phil. Exchange due 13-16 Feb. 1842.

Siter, Price & Co.

John J. Anderson.

Ree’d. Payment, L. A, Benoist & Co.”

The defendants’ clerks testified that the note was discounted by defendants, was so marked, and entries of the discount thereof were made in the usual name in their books, and that said Anderson received the proceeds thereof, which was about on month before the note became due. It was also in evidence that Anderson before that time had got notes, payable to the same payees and endorsed by them, discounted at said defendant’s office, and at other places in St. Louis. That the proceeds of said note were paid to said Anderson, at the time it was discounted by entering in his bank book, which was balanced several times after the credit had been so entered; that Anderson about this time had largely overdrawn his credits.

John J. Anderson testified that the said note was the property of the *654plaintiffs, and that he was the agent of the plaintiffs for collection, and that the said note was left by him with the defendants for collection, and that he thought they knew at the time, that it belonged to the plaintiffs, though he could not say that he told them so — that he had written to Mr. Darby that said note was discounted, but afterwards told him that it was not discounted. He further stated that there were two other notes, having the same makers, payees and endorsers, that had been discounted by the defendants, though hé had forgotton that fact; and that he did not remember of ever having got other notes belonging to Siter, Price & Co. discounted at other places.

It was also in proof^ that in the fall of 1841, and the beginning of 1842, Siter, Price & Co. sent a large number of notes to Anderson for collection, some of which he collected, and others he got discounted. That Anderson’s books were kept irregularly, and the cash account would not balance by one hundred thousand dollars, and could not be corrected' or explained — that Anderson failed in May 1842, and that for some months prior he was hard pressed for money, and occasionally raised money by getting the notes of Siter, Price & Co., which he held as agent, discounted at different places, and then entered them in his bills payable,^ to be provided for by him as they matured.

On this state of evidence, the plaintiffs asked the court to give the jury the following instruction:

“If the jury believe from the evidence that the defendants received the proceeds of the note of P. E. Blow & Co. which has been given in evidence, and that they knew that the said note belonged to the plaintiffs; they are answerable for the amout received by them, notwithstanding the defendants may have passed the amount thereof on their books to the credit of Anderson, if the defendants knew at the time of making such credit, that the note was not the property of Anderson.”

Which the court gave and the defendants excepted; thereupon the defendants prayed the following instruction :

ccIf the jury find from the evidence, that the note given in evidence was endorsed by the plaintiffs and John J. Anderson, and was discounted by the defendants for said Anderson — that he was paid the proceeds or was credited therewith on his account with the defendants, the plaintiffs are not entitled to recover on account of any money received by defendants in payment of said note or any part thereof, unless it appears to the satisfaction of the jury that said note was the property of the plaintiffs, and the defendants had notice thereof, before said Anderson received the proceeds of said discount.”

*655Which the court refused to give, and the defendants excepted.

Did the court of common pleas err in giving the instruction prayed for by the plaintiffs, and in refusing the one asked by the defendants ? It is conceded on the part of defendants, that to protect them against the claim of Siter, Price & Co. they must have been bona fide purchasers of the note of P. E. Blow & Co. from Anderson — without notice — . and have paid Anderson the proceeds thereof. But if they had notice of the ownership of Siter, Price & Co., at what period must they have obtained it to charge them in this action? It need not have been at the time the note was discounted, but if the fact came to their knowledge at any period prior to the payment of the proceeds to Anderson, it would be sufficient, as then the defendants would have it in their power to save themselves from any loss arising out of the faithless conduct of the plaintiff’s agent. The instruction given fixes the notice at a period of time as favorable to the defendants as they could reasonably desire, that is, when the credit was made to Anderson on the defendant’s books.

Prior to this time, the defendants had incurred no liability to Anderson, for the proceeds of the note on Blow & Co. and had assumed no relation to that note by which they would have been affected by the question of ownership.

We are of opinion that the court committed no error in giving the plaintiff’s instruction.

Did the court err in refusing to give the instructions asked by the defendants which they say is not identical with the one given, as is apparent from comparing them; but “ if they were substantially of the same effect, yet as they are circumstantially different, the latter should have been given as it was the law of the case, and the court by rejecting it probably prejudiced the case before the jury.” /The two infractions are substantially the same, and the court might have given them both without committing error; but as the one given embraces the same principle, the refusal to give the other is no cause for reversing the judgment.

The other grounds taken for a new trial are not sufficient. If the plaintiffs have a right to recover at all, they were entitled to a verdict for the full amount of the note of P. E. Blow & Co. with interest, &c. There was evidence before the jury from which they might have found, as they did, and this court will not undertake to weigh the evidence, to see if the jury may not possibly have committed an error, or as readily have found a contrary verdict.

The other judges concurring, the judgment of the court of common pleas is affir med.