The defendant was liable to contribute, so far as he was jointly bound and liable, with the plaintiffs, to pay the obligations of Bancroft, and no farther. The extent of this joint liability must be determined by the contract set forth in the complaint. Independent of that contract the plaintiffs have no claim whatever against the defendant. They were first indorsers on all the paper in question, and the defendant second indorser, only, on any of it, and only upon a small portion, was he even such indorser.- The plaintiffs were indorsers in their firm, or partnership name of “Bickford & Huffman.” Standing in this situation they entered into the contract in question, with Bancroft, the plaintiffs, in their firm name, and the defendant invididually, by which they, in consideration of certain property assigned and transferred to them by Bancroft, jointly agreed “ to pay and assume all drafts by us indorsed for the accommodation of said Bancroft, drawn by him on Stebbins, Gray & Co., amounting to $4500, and other bank paper indorsed by us $936.00.” The agreement then provides that in case more shall be realized, out of the property so assigned, “ than enough to pay our said *261liabilities over said sum of $3693.00 and all costs, expenses and legal charges, we agree to pay over to said Bancroft or his assigns all such surplus or excess after payment of our said liabilities and all costs, expenses and legal charges over the said sum of $3693.00 as aforesaid.” It is thus seen that by this agreement, they only bound themselves to pay and assume all drafts, and other bank paper, indorsed by them. That is indorsed by the plaintiffs’ firm and by the defendant, and to pay back to Bancroft the surplus or excess received by them out of the assigned property after payment of their “ said liabilities ” and the costs and expenses incident to the performance of the contract. It was an agreement between the plaintiffs as a firm, and the defendant jointly, on the one part, and Bancroft on the other. It is entirely clear, I think, that neither Bancroft nor the holders of his paper could have enforced this contract, or made the promise therein contained available, to any extent, beyond the paper which all the promissors had indorsed, and became liable upon, contingently or otherwise at the time the contract was executed and delivered.
It could not have been enforced against them as joint contractors, or joint promissors for paper indorsed by one ■ of the contracting parties only, and on which only one of such joint contractors, or promissors was liable. Such paper does not fall within the terms, or the intention presumptively, of the contracting parties making the promise. It is not paper “ indorsed by us” and on which “we are liable.” It is plain enough that neither of the assignees and promissors intended or expected to incur any liability, beyond what they had already incurred, contingently, by their indorsement. To hold that the defendant by virtue of this contract became jointly liable with the plaintiffs to pay the debts of Bancroft for which he was not before in any respect liable, would be to wrest it from its plain terms and obvious meaning. The surrounding- eircum*262stances at the time the contract was executed do not, in my judgment, aid the plaintiffs, or favor the interpretation contended for by them. There is nothing ■ in any of them, or in all, together, which shows, of tends to show, that the defendant meant to bind himself to any extent beyond his then existing liabilities.' It is true that he supposed at the time, he was upon all the paper, as second indorser, the amount of which is put down. But this mistaken belief or supposition will not operate.to enlarge the contract beyond its plain limitation in terms. He was careful enough to limit the joint promise to paper “ indorsed by us.” The legal effect of the joint undertaking by the plaintiffs and the defendant, upon the receipt of the assigned property, was, to'ehange the nature and character of their obligation as accommodation indorsers of Bancroft, into that of principal debtors, with Bancroft as their surety, in respect to all the paper on which their names appeared. If the agreement had read that they would pay and assume all drafts and other bank paper indorsed by them, or either of them, there would be no difficulty in maintaining this action. But to interpolate this important sentence, under the guise of construction, would he, in effect, to change the contract which the parties made, and substitute another and different one, upon which their minds never met. This cannot be done, and the action cannot he maintained. The judgment must therefore he affirmed, with costs of the appeal, to be taken from the fund in the defendant’s hands, if there shall be sufficient for that purpose, after paying and satisfying therefrom, the previous costs of the action, and if not, any balance which may remain after paying such previous costs, to be applied and the balance of such costs of appeal to be paid by the plaintiffs personally. .
[Monroe Genral, December 7, 1868.JE. D. Smith, Johnson and J, 0. Smithy Justices.]