ON MOTION FOR REHEARING.
HANNA, J.Appellants, in their motion for a rehearing, attack the soundness of the court’s opinion in this case, in three distinct respects. The first point made is that the answer of appellee fails to state facts sufficient to constitute a defense, and the argument thereon seems to be based upon the proposition that if Stone is to be absolved of all personal liability in the premises through alleged agency existing between him and the Citizens’ National Bank of Portales it was-' necessary that agency should be properly alleged, and the liability of the principal disclosed. In the opinion in this case we observed that the question of the bank’s liability was not involved in this case, because we took -the view that the appellee denied personal liability under the guaranty on the part of testator, J. P. Stone, and that, together with the fact that the bank was not a party to this suit, made the question of the bank’s liability entirely immaterial to this case. In paragraph 2 of the complaint it was alleged, among other things, that Stone executed the letter of guaranty, and “in' said letter guaranteed that he, the said Stone, would be personally liable and responsible-to the said Shriver for said proposed loans and liable for the due payment thereof. * * * ’’ The answer of appellee alleged that in the execution of said guaranty Stone was acting solely for the bank, or rather as its president, and-“denies that in said letter the said James P. Stone guaranteed that he would be personally liable and responsible to the said Shriver for said proposed loan, and denies that he guaranteed that he would be liable for the due pavment thereof, according to the effect and tenor of said' promissory notes, or in any manner.”
. It will thus be seen that, while appellee attempted to evade liability on the ground that an agency existed between J. P. Stone and the bank, she also specifically denied any personal liability on her part as administratrix under the letter of guaranty, not essentially because Stone was acting as an’ agent of the bank, but because the writing did not bind Stone. The answer, therefore, cannot be said to be insufficient as stating a defense. It denied what was alleged in the complaint, and cast upon the appellants the burden of proving that the letter of guaranty constituted a personal contract on the part of James P. Stone.'
The second point made by appellants is that there is no evidence to show that Stone intended to bind the Citizens’ National Bank of Portales by the letter of guaranty. We have held that the letter of guaranty is ambiguous as to who was intended to be bound thereby. While we made reference to the fact stated by appellant that perhaps the writing was intended to bind the bank, having been executed by one of its officers, we expressly said that we did not so find, but that the writing was of such a character that resort must be had to proof aliunde the writing to determine the fact. It is entirely immaterial that there is no proof sufficient to show that the bank was intended to be bound by the instrument, for the finding of the trial court was that the writing did not bind J. P. Stone personalty, and the bank is not a party to this suit.
The third and last proposition argued by appellants is that the court did not consider the seventh and eighth assignments of error made by them, which are decisive of the ea«e. The seventh assignment of error is to the general effect that the court erred in holding “that the extrinsic evidence in said cause did not warrant the court in changing the former ruling of said district court upon defendant’s demurrer, because the evidence in said cause clearly shows” that the parties interpreted the writing as the contract of Stone nersonally, and that the writing was intended to bind Stone personally. The eighth assignment is to the general effect that the court should have rendered judgment for appellants because the word “president” was merely descriptive of the person of Stone, and. because there was no evidence that Stone intended to bind the bank.
We have held that the evidence warranted the finding of the court to the effect that the writing did not bind Stone personally, and have also considered the point with reference to the interpretation of the contract by the parties. We also discussed the effect of the use of descriptive words to signatures in contracts. It should be remarked at this point, we believe, that appellants seemingly lay great stress on that part of the trial court’s opinion in which it is stated that the evidence “squints” both ways as to the personal liability of Stone on the letter of guaranty. The appellants relied on the writing, which was ambiguous, to hold Stone personally liable thereon. The burden of proof was upon them. If the evidence was evenly oalanced, as the trial court said.it was, necessarily the appellants did not prove their contention that Stone was personally liable on the letter by a preponderance of the proof. However, the court found that Stone was not personally liable on the instrument, and the record contains no exception thereto on the part of appellants specifically pointing out any error therein. Appellants devote much of their brief to the conduct of T. E. Mears, an attorney, who, it is said, was attorney for one of the appellants prior to the institution of this suit, and who subsequently, while representing the appellee herein, testified in this suit as to certain matters communicated to him while in the employ of the said appellants. We are asked, in effect, to completely disregard this testimony of Mears, in which event it is argued that there is absolutely no evidence to sustain the finding of the trial court that Stone was not personally liable on the letter of guaranty. The record, as we view it. is not entirely clear that Mears was the attorney for Shriver at the time Shriver is supposed to have made a statement te°tified to by Mtears; but, regardless of this, even though we were to refuse to consider the testimony of Mears on this nropo°ition. the appellants thereby would not have sustained the burden of proof bv a nrenonderance of the evidence that Stone was personally liable on the letter of guaranty. In passing, ■it should be remarked that no exceptions properly pointing out any alleged vice were taken to the-findings of the trial court, and no proposed findings submitted to the ■court.
The motion for rehearing will therefore be denied, and it is so ordered.
Koberts, C. J., and Parker, J., concur.