*1491Y.
On the Merits.
The theory of the plaintiff is, that after the contract of guaranty liad been furnished, and the town of Homer had failed to vote the necessary aid to procure the right of way for its road, it purchased ■from persons owning property along the projected route and paid for same, or promised to pay for -same, and built its road from the town of Homer to the Arkansas line; and that, consequently, the defendants are responsible therefor, and are hound to reimburse plaintiff for its outlay.
On the trial it was shown that it was necessary for the plaintiff to procure the right of way from the property owners along the proposed route of its road between the town of Homer and the Arkansas line, and either to pay for same, or become responsible therefor; and there was introduced in evidence a compiled statement of the names of those persons from whom the right of way had been obtained, and the several amounts paid therefor — the number of persons being twenty-six, and the aggregate amount paid $8,484.67.
It was admitted by defendants’ counsel that the plaintiff had paid to the persons therein named, the amounts therein stated; and the aggregate amount is the sum judgment was prayed for.
There was introduced in evidence the proceedings of a mass meeting which was held in the courthouse in the town of Homer, on the 7th of April, 1897, from which it appears that a committee was appointed for the purpose of obtaining signatures to the instrument sued on; and it appears to have been signed on the same date.
From an ordinance of the town council, of June 24th, 1897, it appears that a committee was appointed thereby, for the purpose of conferring with the property owners of the town of Homer, with reference to two different proposed routes through the town, “in order to agree on prices of the right of way through the corporation.”
It appears from the evidence that on the 28th of July, 1897, several citizens and property owners of the town of - Homer signed a document to the effect that the company should secure from the property, owners along its proposed route the right of way that is contemplated, in the agreement sued upon, and at the respective prices stated, and of the persons named, and “as agreed on by the property owners and a committee of citizens, etc.,” the sum aggregating $8,400.00.
*1492That agreement was made the basis o£ the special tax which it was proposed the town of Homer should vote in favor of the railroad company, and it was subsequently signed by thirty-six property owners thereof.
But after these proceedings, nothing further was done in the-direction of securing the levy of the proppsed special tax, so far as the record discloses, until the 6th of July, 1898, when the plaintiff filed a mandamus suit against the municipal authorities for the purpose of coercing them to hold an election for that purpose — alleging in its petition that seventy property taxpayers of the town of Homer had previously presented a memorial to that effect.
After issue joined and trial had, a judgment was rendered, making the mandamus peremptory; and subsequently an election was held and the tax defeated — the plaintiff’s road having been, in the meantime, completed.
Some testimony was introduced and some argument made in respeet to the charges of fraud and bád faith on the part of the plaintiff and its agents, officers and representatives, with reference to-certain alleged representations made to the defendants for the purpose of obtaining their signatures to the agreement sued .on; but, in our opinion, the same have not been sustained.
On the contrary, the record furnishes ample evidence of the fact that tho defendants and other signers thereof were actuated exclusively by the desire that tho plaintiff’s road should be extended from the town of Homer, wherein they all lived, to the Arkansas line, with a view of other and advantageous connections.
On this theory and evidence, we- think the defendants are, undoubtedly, bound.
• But the defendants’ counsel urge the additional contention that, in any event, the signers only had in view’ the right of way from the north boundary line; and that, under no condition, can they he held bound for any other right of way;
They contend that the lower judge did not hold defendants for the right of way over the Aubrey property, which is valued at $600.00, “because it was south of the northern terminus of the plaintiff’s road " at the time the document (sued on) was signed.”
On this question many witnesses were interrogated, and their statements are, as usual in such eases, irreconcilable.
Some of the witnesses state that the general manager, and agents *1493of the plaintiff, told them that the route of the road, from its depot on the south side of the town, would pass on the east side of the town; and that the plaintiff either had the right of way, or possessed it virtually.
The statement of J. P. Aubrey is, that they said that the route would begin at the east end of the “Y” and go around the town, as they owned a right of way in that direction, except as to two parties.
Other witnesses state that there was nothing said as to where the road should be built, but that it was to go wherever the best route was attainable.
In the contract nothing is said on this subject, and the only course open was to test the matter by parol evidence; but a fair consideration of it has left our minds in doubt as to the proper solution of the difficulty.
In this situation we feel it to be our duty to rest our decision upon the judgment of the judge of the lower court, who saw and heard the witnesses.
The proof shows, that the value of +he right of way. through the Aubrey property was $600.00; and by deducting that sum from the total amount the plaintiff paid $3,48467, and dividing the residue by 85, the total number of persons who signed the agreement sued upon, and the result produced is $33.93, the exact amount for which judgment was rendered against each of the defendants.
The only remaining question to be considered is the character of the obligation; and as it is written, “w* hereby guarantee, etc.,” our conclusion is that the obligation is joint and not in solido.
The document is, in terms, an ordinary commercial guaranty, and 'to be treated and considered as other commercial instruments of that class. And, indeed, if it bw interpreted in accordance with tne character of the enterprise, our conclusion would not be different.
Judgment affirmed.