Page:North Dakota Reports (vol. 2).pdf/505

 Bartholomew, J. (dissenting.) In a proper case the principles of law stated in the majority opinion would receive my unqualified concurrence; but I am obliged to dissent in this case, because I think these principles are misapplied. The case turns entirely upon the construction of the contract set forth in the opinion. The trial court under the pleadings and proofs held that contract to be a present and general guaranty upon the part of Brandenburg to the extent named. The majority opinion holds that the contract is without force against Brandenburg as a guaranty; that it is a contract on the part of Mrs. Hall to pay interest in which it is incidentally stated, not that Brandenburg had guaranteed, but that he had agreed that he would guaranty; thus making further action on his part necessary before he would incur any liability as guarantor. Plaintiff declared upon the contract as a present guaranty, and set it up in hæc verba as a part of the complaint. There was no demurrer. Brandenburg answered, but on the trial objected to the introduction of any evidence under the complaint. In this court he urges in support of his objection that construction of the contract which my associates deem correct. To me it seems that two elementary principals require a different result. The first is that a contract should always be construed as to affect the intent of the parties, unless such construction does actual violence to the language used. ‘The second is that defective averments in a pleading may be cured by the averments of the adversary. When appellant made his objection to the introduction cf any evidence under the complaint, his answer, which was on file, contained the following: “This defendant denies that the plaintiff ever extended credit to the defendant Mabel E. Hall as alleged in the complaint, or in any sense or manner whatever, under the provisions of the agreement, a copy of which is attached to said complaint, marked ‘Exhibit A,’ and denies that the plaintiff, in giving any credit to the defendant Mabel E. Hall, ever relied upon or considered the guaranty expressed in said agreement.” Both parties, by their pleadings, treated the agreement as a present guaranty. Plaintiff alleged that “the defendant Bradenburg, for value, and for the purpose of enabling the defendant Mabel E. Hall to purchase goods on