ON MOTION FOR REHEARING.
The motion for rehearing is made by the defendant in error on the ground that this court in its opinion reversing the grant of a nonsuit in this case treated the contract as it appeared in evidence rather than the contract as recited in the petition as being the contract sued on. It appears that the contract as introduced in evidence had a provision attached that “this guarantee does not limit the amount of credit extended the said party” whereas the contract as it appeared in the petition contained no such provision.
Rule 20 of this court provides that “ wherever it is reasonably possible to do so, counsel will, on or before -the call of the case for argument, supply a joint statement indicating whether the briefs *165together contain such a statement of the facts as to justify a decision upon the briefs without a reading of the record by the Judges.” Counsel for the plaintiff in error in “Part 1” of his original brief filed stated that the plaintiff in error filed suit against the defendant in error “on a contract of guaranty (page 1 of the brief of documentary evidence).” Counsel for the defendant in error in his original brief filed states that “Part one of the brief of the plaintiff in error sets out substantially a correct statement of facts” with the exception of certain statements in regard to the testimony of a named witness, which is not material here. It appears from the contract as copied on page 1 of the documentary evidence that it contains a provision as follows: “It is agreed that this guarantee does not limit the amount of credit extended the said party.” Although this court was not bound to accept the statement of counsel as to matters appearing in the record but could if it saw fit, refer to the record, it was nevertheless justified under rule 20 in accepting as correct the agreed statement by the parties that the contract sued on was the contract as contained on page 1 of the documentary evidence as it appeared of record, and in predicating its judgment upon the assumption that this was a correct copy of the contract sued on.
Although it now appears from statement of counsel on motion for rehearing that the contract introduced should not be treated as the contract sued on, but that the contract attached to the plaintiff’s petition should be so treated, still the evidence as to orders approved by the guarantor and as to the admission by the guarantor that he was liable for the Brown Shoe Company account required that the case be submitted to the jury. Rehearing denied.