BRUUN V. THORNTON. 9

BRUUN versus THORNTON.
No. 81. Argued May 15, 1911. Decided August 31, 1911.
GUARANTY.
A contract of guaranty should be construed in accordance with the terms there.
of, and, if there be any doubt as to the proper construction, the court should take into consideration the surrounding circumstances in order to determine what the parties had in mind at the time that the contract was
executed.
Appeal from the Circuit Court, Second Judicial Circuit, Hon. Wesley M. Owen, judge.
The facts appear in the opinion.
Carrington and Todd for appellant. Maclntyre and Rogers for appellee.
THOS. E. BROWN, JR., J. This is an appeal from a judg.. ment of the Circuit Court of the Second Judicial Circuit.
The respondent, defendant below, filed a motion to dismiss the appeal. The motion to dismiss is based on three alleged grounds:
(1) Because the appellant failed to comply with the court rule now in force requiring appellant to pay the estimated fee for making the record within five days of notice of the amount charge-. able.
(2) Because the appellant's bill of exceptions does not conform to the provisions of section 132 of the Code, of Civil Procedure in that it contains all the evidence taken at the trial instead of being a "brief statement of facts."
(3) Because the appellant requested the court below to deny his motion for a new trial.
Respondent's motion to dismiss is denied for the following reasons:
(1) The court rules now in force were not published until after appellant perfected his appeal.
(2) While the reproduction in the bill of exceptions of all the evidence introduced at the trial is probably not that "brief statement of facts" contemplated by the terms of section 132 of the Code of Civil Procedure, yet custom has so far sanctioned the
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