
    LINDSAY, Substituted for E. D. Rasmussen, Respondent, v. KRUIDENIER et al, Appellants.
    (208 N. W. 824.)
    (File No. 5939.
    Opinion filed May 18, 1926.)
    1. Guaranty — Under Agreement to Guarantee Payment of Another’s Personal Accounts Then Owing, Guarantor Cannot Be Held for Indebtedness Accruing After Execution of Guaranty. Under agreement to guarantee payment of another’s personal accounts then owing when made up, guarantor cannot be held to pay amount owing on settlement of such other’s partnership affairs or on indebtedness accruing after execution of guaranty.
    2. Pleading — Unambiguous Contract, to Guarantee Payment of Certain Accounts Should Be Construed in Accordance With Its Terms Regardless of Promisor’s Admission in Answer of Greater Liability Than It Provided).
    Unambiguous contract to guarantee payment of certain accounts should be construed in accordance with its terms,, regardless of promisor’s admission of greater liability than it provided in carelessly drawn answer, since such admission is not admission of fact, but of legal effect of contract.
    Note. — See, Headnote (1), American Key-Numbered Digest, Guaranty, Key-No. 3 6 (2) 28 C. J. Sec. 95; (2) Pleading Key-No. 127 (2), 31 Cyc. 213.
    Appeal from Circuit Court, Brown County; Hon..Robert D1. Gardner, Judge.
    Action by H. O'. Lindsay, substituted plaintiff for E. D. Rasmussen, against R. P. Kruidenier and another. Judgment for plaintiff, and defendant L. Kruidenier appeals.
    Reversed and remanded.
    
      McNulty, Williamson & Smith and Geo. W. Crane, all of Aberdeen, for Appellant.
    
      Jantes M. Brown, of Aberdeen, for Respondent.
   B'URCH, C.

This actio-n arises out of transactions between E. D. Rasmussen, R. P. Kruidenier, and I, Kruidenier. H. O'. Lindsay, substitute plaintiff for Rasmussen, gains his rights through an assignment of Rasmussen’s claim, and need not be further mentioned in this opinion since his rights must depend on Rasmussen’s. Rasmussen and R. P. Kruidenier were partners in a ranch business, and, although the complaint declares upon several causes of action, the trial was chiefly an accounting of the partnership affairs, and the circuit court rendered judgment against both defendants for $8,995.46 with costs. L. Kruidenier alone appeals. Appellant is sought to be held upon the accounting by virtue of a written agreement entered into on the 25th of September, 1920. In that agreement appellant agrees to pay certain described notes, and then follows this provision:

“And the said second party also agrees to guarantee the payment of the accounts now owing by this said R. P. Kruidenier to the Rasmussen Drug Company, the Rasmussen-Dickerson Company, the North West Implement Company, and E. D. Rasmussen personally, such accounts to be made up at once, and the} guaranty placed by second party on each account, the amounts of the same to be paid out of a sale of R. P. Kruidenier’s personal property, said second party to release all mortgages he has on such property.”

The above provision is hot a guaranty of the accounts mentioned, but is an agreement to- guarantee them, by a written guaranty on the account when made- up. The only' account in dispute is the last named, namely, the E. D- Rasmussen personal account then owing. On this agreement respondent is attempting to hold appellant to- a guaranty of any amount that mav be found to be owing on a settlement of the partnership affairs. In taking the accounting. many of the larger items'- accrued from transactions occurring aft$r the execution of the .guaranty, and therefore are not within the terms of the guaranty, as that purports to cover only accounts then owing. While the judgment against R. .P1. Kruidenier properly covers a complete accounting between the partners, as against the guarantor, L. Kruidenier, the amount of the judgment should have been confined to the personal account of R. F. Kruidenier owing to Rasmussen on thei date of the execution and -delivery of the contract.

We are not unmindful that the answer was carelessly drawn and contains admissions not warranted by the facts. It admits that appellant “agreed in writing to pay to said plaintiff whatever amount was found to be due upon an accounting of said partnership affairs.” But there is 110 contention there was any other contract than the one in evidence. An admission of a greater liability than the contract provides, is not an admission of a fact, but the legal effect of the contract. The contract fixed the rights of the parties. It is not ambiguous and should be construed in accordance with its terms.

The judgment appealed from is reversed and the cause remanded.

CAMPBELL, J., disqualified and not sitting..  