ing to the payment of which the bank agreed. to apply deposits until it was satisfied.

If, as insisted by counsel for the bank, this paper was a continuing guaranty and not a guaranty of an existing overdraft, it is difficult to understand the reason for inserting in the paper the stipulation that the receipts of the White City Company should be applied to the payment of the overdraft until it was extinguished. In our opinion, to construe this paper as a continuing guaranty would do violence to the expressed intention of the parties and result in ignoring the condition obligating the bank to apply the receipts in a specified way.

It is, however, argued in behalf of the bank that the condition of the bank account of the White City Company on July 6 shows that the guaranty was intended to be a continuing one and did not have reference to an existing overdraft of $4,500. Waiving the question as to the competency of the account as an aid in the construction of a paper that on its face seems free from ambiguity, we do not think the condition of the account sustains the conclusion reached by counsel. The account shows that on July 2nd, the overdraft was $5,044.77, and that on July 3d, the overdraft was $4,623.08, and that on July 4th and 5th it was $5,081.64. It further shows that on July 6th there was deposited $3,182.30, leaving an overdraft at the close of business on July 6th of $1,899.34, and the argument is made that when this guaranty was executed the overdraft only amounted to $1,899.34, and therefore the reference in the guaranty to an overdraft of $4,500 could not refer to an existing overdraft, as there was no existing overdraft in that amount. Whether there was an overdraft of $4,500 when this guaranty was executed, depends on the time of day on July 6 that it was executed, because in the morning of that day, and at all times on that day before the deposit of $3,182.30 was made, there was an overdraft of more than $4,500, and it is reasonable to assume that this paper was executed before this deposit was made.

It is further suggested by counsel that if the paper was executed before the deposit had reduced the overdraft, it is singular that the paper, which was intended to only guarantee an existing overdraft, did not specify the amount of the overdraft then existing, which was $5,081.64, instead of specifying $4,500. The record does not show, and we have no means of knowing what influenced the guarantors to fix the amount for which they

were willing to become liable at $4,500, but whatever the reason was, they had the right to insert any sum they pleased, and the motives that influenced them to specify $4,500 are not the subject of pertinent inquiry.

In reference to the assertion of counsel for the bank that the signers of the guaranty who were also officers of the bank are estopped from denying that this was a continuing guaranty, it seems sufficient to say that as there is no claim of fraud or mistake in the execution of the paper, its terms and conditions cannot be extended or modified by a construction that would give it a meaning that the language employed is not fairly susceptible of. Aside from this, we are unable to perceive how the fact that some of the signers of the guaranty were officers of the bank could have the effect of estopping them from denying that the paper upon which it is sought to hold them liable, was not a continuing guaranty. In signing the paper they were not acting as officers of the bank but were dealing with it as customers, and the relation they held with the bank does not in any manner affect their rights as signers of this paper.

The judgment is affirmed.

First National Bank of Louisville v. Bickel, et al. First National Bank of Louisville v. Bickel, et al.

(Decided May 22, 1913.)

Appeals from Jefferson Circuit Court (Common Pleas Branch, First Division).

1. Practice-Right of Court to Set Aside Consent Orders and Judgments. When the ends of justice require it, the court in which an order or judgment is entered, although it be by consent, may set it aside upon the motion of either of the parties if the motion is made while the court has control of the order or judgment, but before the court sets aside a consent order or judgment the party asking that it be done should present good and sufficient reasons therefor.

2. Practice Civil Code Section 333-Construction of-Waiver.Section 333 of the civil code providing in substance that objections and exceptions must be made and taken by a complaining party before he will be heard afterwards to object to an order or ruling of the court, do not apply with the same binding force in the court in which the ruling or order is made as they do in this court. The court in which the order or judgment is made may

3.

for good reasons set it aside, although it is entered by consent or without objection; but a party who brings his case to this court cannot avail himself here of erroneous rulings or orders made in the lower court unless he has, in the manner pointed out in section 333, saved an exception or an objection to the order or ruling he complains of.

Bills and Notes-Endorsers-A person who places his name upon commercial paper other than as maker, drawer or acceptor is deemed to be an endorser, unless he indicates by proper words in the endorsement his intention to be bound in some other capacity.

4. Banks-Vice-President Not Responsible If Notice of Dishonor of Paper is Not Given.-The vice-president of a bank by virtue of his office is not charged with the duty of seeing that notice of the dishonor of paper is given to the person entitled thereto, or liable in any manner if he fails to do so.

5. Banks-When Bank Officer Estopped to Deny Liability on Paper Because Notice of its Dishonor Not Given.-Where an officer of a bank is one of the signers of commercial paper executed to the bank, he is entitled to notice of the dishonor of the paper to the same extent as if he was not connected with the bank, unless it was his duty as an officer of the bank to give such notice; and if it was, he will be estopped to plead want of notice as a defense to a suit by the bank against him.

BRUCE & BULLITT and HELM BRUCE for appellant.

B. F. WASHER, W. PRATT DALE, C. H. SHEILD and KOHN, BINGHAM, SLOSS & SPINDLE for appellees.

OPINION OF THE COURT BY JUDGE CARROLL-Affirming. These two appeals presenting the same questions of law will be disposed of in one opinion.

On April 12, 1907, the White City Co., by its president, executed and delivered to the First National Bank a demand note for $5,000, which was endorsed by the appellees. On May 29, 1907, the same parties, with a few exceptions, signing the paper in the same manner, executed to the bank a note for $5,000 due in sixty days, and on June 21, 1907, the same parties, with a few exceptions signing the paper in the same way, executed a note to the bank for $10,000 due in forty days.

In November, 1908, the bank brought three separate suits on these notes, and it appears that substantially the same motions, demurrers and answers were presented by the defendants in each case. No evidence was taken in either case, and in April, 1909, a general demurrer was sustained to the petition filed on the note

that was executed on May 29, 1907, and the petition dismissed. From the judgment dismissing the petition the bank prosecuted an appeal to this court, and in May, 1911, the judgment of the lower court was affirmed by this court in an opinion that may be found in 143 Ky., 754. On October 7, 1911, the mandate from this court was filed in the lower court and upon the filing of this mandate there was entered in each of the other two cases which had remained on the docket in the same condition as they were when the judgment dismissing the petition was rendered in the case appealed to this court this order:

"The issues involved in this action having been heretofore determined against the plaintiff in action No. 52914, First National Bank v. C. C. Bickel, this cause is now dismissed. It is therefore considered by the court that the defendant recover of the plaintiff his costs herein expended and may have execution therefor."

At this point we may digress a moment to say that it is evident that the two actions in which this order of dismissal was made were left pending on the docket for the purpose of entering such a judgment in these cases as might be authorized by the opinion of this court in the appealed case, and so when the mandate in the appealed case was issued affirming the judgment of the lower court, the order of dismissal in the two cases now before us was entered.

It appears, however, that after this order of dismissal was entered, counsel other than those who then represented the bank were employed, and in December, 1911, and within sixty days from the order of dismissal, the new counsel for the bank entered a motion in behalf of the bank to set aside the orders of dismissal, in each case and at the same time tendered an amended petition. But the lower court refused to set aside the orders of dismissal or to allow the amended petitions to be filed, and from the ruling of the court these appeals are prosecuted.

Quite a good deal is said in argument by counsel for both parties as to the effect of the orders of dismissal entered on October 7, 1911, counsel for the bank insisting that the bank was not estopped from asking that these orders be set aside, while counsel for Bickel and others contend that these orders were in effect_agreed orders and therefore the bank was estopped from asking that they be set aside. Looking at these orders

as they stand without reference to any custom or practice prevailing in the Jefferson Circuit Court, it would appear that these orders were made by consent or agreement of counsel representing both parties as no objection was taken or exception saved. But if we should treat them as consent orders, we do not think they operated to conclusively estop the bank from asking that they be set aside while the court had control over them, as the Jefferson Circuit Court did at the time the motion to set aside was made, or that the court entering these orders was without power, upon a proper showing to set them aside within the time mentioned.

Ordinarily a party who agrees or consents to the entry of an order or judgment will not afterwards be heard to complain of it or allowed to have it set aside. But this rule of practice is not without exceptions. When the ends of justice require it, the court in which an order or judgment is entered, although it be by consent or agreement, may set it aside upon the motion of either of the parties if the motion is made while the court has control of the order or judgment. In other words, a consent order or judgment is not conclusively binding, and does not work an absolute estoppel on the party consenting to it. But before the court will set aside a consent order or judgment, the party asking that it be done should present good and sufficient reasons therefor, and if it appears that injustice or wrong would result from a failure to set aside the order, and further appears that substantial rights of the adverse party arising since the consent order was entered and as a result of it, will not be prejudiced by setting aside the order, the court should grant the request.

Section 333 of the civil code, providing in substance that objections and exceptions must be made and taken by a complaining party before he will be heard to afterwards object to an order or ruling of the court, do not apply with the same binding force in the court in which the ruling or order is made as they do in this court. As we have stated, the court in which the order or judgment is made and entered may for good reasons set it aside upon motion made within proper time, although the order sought to be set aside was entered by consent or without exception or objection by either party. But a party who brings his case to this court cannot avail himself here of erroneous rulings or orders made in the lower court unless he has, in the manner pointed out in