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loading, or while it is at said island actually loading. If it means the former, the company is not liable; if the latter, it is liable."

It will be seen that what was desired was, in fact, to put a construction upon the word "loading," which would seem to require the insertion of the words, "for the purpose of," in order that the word "loading" might be understood as intended by the parties. Justice Bradley continues:

"A strictly literal construction would favor the latter meaning. But a rigid adherence to the letter often leads to erroneous results, and misinterprets the meaning of the parties. That such was not the sense in which the parties in this case used the words in question is manifest, we think, from all the circumstances of the case. Although a written agreement can not be varied (by addition or subtraction) by proof of the circumstances out of which it grew and which surrounded its adoption yet such circumstances are constantly resorted to for the purpose of ascertaining the subject-matter and the standpoint of the parties in relation thereto. Without some knowledge derived from such evidence, it would be impossible to comprehend the meaning of an instrument, or the effect to be given to the words of which it is composed. This preliminary knowledge is as indispensible as that of the language in which the instrument is written. A reference to the actual condition of things at the time, as they appeared to the parties themselves, is often necessary to prevent the court, in construing their language, from falling into mistakes and even absurdities. On this subject Professor Greenleaf says: "The writing, it is true, may be read by the light of surrounding circumstances, in order more perfectly to understand the intent and meaning of the parties; but, as they have constituted the writing to be the only outward and visible expression of their meaning, no other words are to be added to it, or substituted in its stead. The duty of the courts in such cases is to ascertain, not what the parties may have secretly intended, as contradistinguished from what their words express, but what is the meaning of the words they have used' (1 Greenleaf Ev., Sec. 277). Mr. Taylor uses language of similar import. He says: 'Whatever be the nature of the document under review, the object is to discover the intention of the writer as evidenced by the words he has used; and, in order to do this the judge must put himself in the writer's place, and then see how the terms of the instrument affect the property or subject-matter. With this view, extrinsic evidence must be admissible of all the circumstances, surrounding the author of the instrument.' Taylor, Ev., Sec. 1082."

Again he says:

Cole v. Merchants Nat. Bank.

"It may, and indeed it often does, happen, that in consequence of the surrounding circumstances, being proved in evidence, the courts give to the instrument, thus relatively considered, an interpretation very different from what it would have received, had it been considered in the abstract. But this is only just and proper; since the effect of the evidence is not to vary the language employed, but merely to explain the sense in which the writer understood it." Citing Sec. 1085, and Thorington v. Smith, 75 U. S. (8 Wall.) 1 [19 L. Ed. 361] and remarks of Mr. Justice Strong in Maryland v. Railway, 89 U. S. (22 Wall.) 105 [22 L. Ed. 713].

Another case that we have examined is very instructive on this point and affords a very good illustration of the use that may be made of the circumstances, and, very often, of the necessity of the court having the circumstances before it in order that the contract may be comprehended. I refer to the case of Stoops v. Smith, 100 Mass. 63 [1 Am. Rep. 85].

But, we do not feel called upon to weigh and so pass upon the weight of the authorities which seem to be opposed upon this question outside of Ohio; we believe the question is substantially settled for us by the Supreme Court of this state. The case of Birdsall v. Heacock, 32 Ohio St. 177 [30 Am. Rep. 572], was upon a written guaranty as follows:

66

'Alliance, May 11, 1868. "E. H. Potter: Please send my son the lumber he asks for and it will be all right. I had to get him to write this as I was kicked with a horse one week ago on the arm and can not more than write my name if that. "Signed, Edwin Heacock."

In the syllabus it is said:

"A letter addressed to a lumber merchant in the following language, 'Please send my son the lumber he asks for, and it will be all right,' is a guaranty that the lumber sold and delivered to the son at the time of its presentation, will be paid for.

"But such guaranty is not continuing, so as to make the guarantor liable for lumber subsequently purchased by the son from the same merchant. And payments afterward made by the principal, on account, will be applied in satisfaction of the first purchase, and consequent discharge of the guarantor's liability."

In arriving at this conclusion as to the construction to be put upon the guaranty, the court took into consideration the circum

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stances surrounding the transaction. Here the circumstances were set forth in order that the apparent meaning of the guaranty might be extended somewhat, but the court nevertheless deemed it proper to consider such circumstances. I read from page 182:

"In order, therefore, to extend the meaning of this guaranty beyond the necessary import of its terms, the petition under consideration states that it was written and acted upon under certain circumstances which are supposed to give its language a meaning that it would not otherwise import. But, looking to all the circumstances stated in the petition, we think they are not sufficient to give the guaranty relied on a more extended mean, ing than its terms would ordinarily import. It is averred that the guarantor knew that his son was about engaging in the lumber business, which he expected to carry on for several seasons. But the writing contains no reference to that fact; and it is not averred that the son expected or intended to make a series of purchases of lumber from the plaintiff, and that this fact was known to the father. It is also alleged that the plaintiff from time to time, furnished to the son the different bills of lumber stated in their account in reliance upon this guaranty. But it is not alleged that this fact was, during this time, known to the father, or acquiesced in by him. Had such been the fact, it would be a practical construction of his contract, by the guarantor, which we might well adopt and enforce.

Now it is true that the rule as applied by the Supreme Court in this particular case, would go no further than to admit extraneous circumstances where there is some ambiguity upon the face of the writing. I read from page 182:

"In all written contracts, we think the language of the parties should be so construed as to give effect to their clearly understood intention.

"And as an additional rule, we think it well settled that all contracts, in which the terms are in any respect equivocal, should be read in the light of the circumstances under which they were entered into. This is to be done, not for the purpose of varying the intention of the parties, as disclosed by the writing, but of ascertaining what the parties in fact meant by the doubtful language employed for the expression of their intention. The language of the guaranty in this case is, 'Please send my son the lumber he asks for, and it will be all right.''

But we think it will be seen from a consideration of other

Cole v. Merchants Nat. Bank.

cases, that the rule goes beyond this and admits the circumstances where considered with the language, they give rise to an ambiguity; or, otherwise stated, where, read in the light of the circumstances, the language may seem to be equivocal or ambiguous; and in such cases of latent ambiguity, and in all cases, the circumstances surrounding the transaction may be shown and considered as an aid to construction and especially to apply the contract to its subject-matter. I shall call attention to some cases decided by the Supreme Court of this state wherein it has been distinctly stated that surrounding circumstances are to be so used in case of latent ambiguity in the contract.

The case of Morgan v. Boyer, 39 Ohio St. 324 [48 Am. Rep. 454], was also upon a guaranty, and the third clause of the syllabus is:

"The language used is to be understood in its plain and ordinary sense, as read in the light of the surrounding circumstances, the situation of the parties, and the object of the guaranty, and that construction given which most nearly conforms to the intention of the parties.

It will be observed that the guaranty in this case was very general in its terms, and the language in its comprehensive sense would seem to include anything that might be sold at any time by the seller, to whom the guaranty was given, to the person on whose behalf the guaranty was given. It reads:

"Messrs. Morgan, Root & Co.:

"Tiffin, April 11, 1876.

"Gents: The bearer, Mr. H. A. Bowlus, is visiting your city buying a few goods in your line, and anything you may be able to sell him will be paid promptly as agreed on, which I herewith guarantee.

"Yours respectfully, H. A. Boyer."

It was held that this was not a continuing guaranty; that it would apply to such goods only as might be purchased upon the particular visit referred to, the instrument being construed as referring to a certain visit. The words "is visiting," the court regarded as equivalent to the word "visits," so that it might be understood as plural or singular-to mean visits from time to time or a visit at that particular time. The court regarded these

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words standing alone, as somewhat ambiguous; but after considering the words, and (as stated in the opinion):

"Applying to the construction of this guaranty the rules which we have stated, with the aid of the surrounding circumstances, and the purpose for which it was given, we are led to the conclusion that the plaintiffs were not justified in treating it as a continuing guaranty."

Dayton v. Hooglund, 39 Ohio St. 671, was an action upon a contract made by correspondence, and Judge Oakey in delivering the opinion for the court, says, at page 680:

"The agreement in this case was made solely by correspondence between Mitander and Dayton, and is, therefore, an agreement in writing. Its construction is for the court. Parol evidence is not admissible to vary its terms. Thurston v. Ludwig, 6 Ohio St. 1 [67 Am. Dec. 328]; Jones v. Brown, 11 Ohio St. 601, 606; Neil v. Ohio Agricultural & Mech. College Tr., 31 Ohio St. 15, 19; nevertheless, the court may look not only to the language employed in the letters, but to the subject-matter of the agreement and the surrounding circumstances, so as to be able to see the transaction as the parties themselves saw it. Merrian v. United States, 107 U. S. 437 [27 L. Ed. 531; 2 Sup. Ct. 536].

I have already referred to the case of the Cambria Iron Co. v. Keynes, Supra. That was a suit upon a guaranty, and it is said in the first clause of the syllabus:

"In construing a contract of guaranty, the object should be to ascertain in the intention of the parties; and as in construing all contracts, the words employed by the parties should be construed in the light afforded by the circumstances surrounding them at the time it was made.

And, in the opinion, at page 513:

"In construing a contract of guaranty, the object should be the same as in construing any other contract: that is, to ascertain the intention of the parties to the instrument, when that intention is ascertained the guarantors are bound by it. While a guarantor may stand upon the strict letter of his contract, his rights extend no further. To ascertain whether an asserted obligation falls within a contract of guaranty, resort should be had to the situation in which the parties stood and the words they have employed."

We had occasion to consider this question and these same authorities somewhat, in the case of National Bank v. Garn, 23