Missouri, Kansas & Texas Railway Co. v. American Surety Co.

236 S.W. 657, 291 Mo. 92, 1921 Mo. LEXIS 89

• Court: Supreme Court of Missouri
• Decided: December 30, 1921
• Status: Published

Opinions

WALKER, J.

This suit was brought by the Missouri, Kansas & Texas Railway Company against the American Surety Company in the Circuit Court of the City of St. Louis on a bond of indemnity given by the firm of Graham & Miller as principal and the defendant, the American Surety Company, as surety, to the plaintiff' in the sum of $10',000. Upon a trial to the court there was a judgment in favor of the plaintiff, from which defendant appeals. The bond sued on was as follows:

“Know All Men by These Presents, That we, J., T. Miller and L. G. Graham, composing the firm of Graham & Miller, principals, and American Surety Company of New York, as surety, are indebted to the Missouri, Kansas & Texas Railway Company, hereinafter called the ‘Railway Company,’ in the penal sum of ten thousand dollars, for the payment whereof well and truly to be made we hereby bind ourselves, our heirs and representatives, successors and assigns, jointly and severally, by these presents.

‘ ‘ The obligation of this bond is such that,

“Whereas, The said Graham & Miller are general railroad tie contractors, engaged in the business of furnishing to railway companies crossties, switch ties and lumber, in the State of Missouri; and,

“Whereas, The said Graham & Miller for several years past have been selling ties and lumber to the Railway Company and desire to furnish ties and lumber to said Railway Company during the year 1899; "and,

“Whereas, The Railroad Company is willing to continue purchasing of said Graham <⅜ Miller ties and lumber, from time to time as it may want them, provided the same conform to specifications and requirements of the Railway Company and are accepted by its -fully authorized agent after inspection; and, provided further, that said Graham & Miller will hold it, the Railway Company, harmless by reason of any and all .claims which may be made against it by laborers, materialmen and others, to and on account of any ties and lumber furnished by them to the Railway Company, between January 3, 1898, and January 1, 1900’.

“Now, Therefore, If the said Graham & Miller shall well and truly protect and indemnify the Railway Company against all loss and damage, costs and attorney fees, by reason of any claims which may be made against the Railway Company on account of any ties and lumber which have been or may be furnished by them and accepted by the Railway Company, as aforesaid, by any person or persons whatsoever, and warrant and defend their title to all such ties and lumber, then this obligation to be void, otherwise to- be and remain in full force and effect.”

Omitting the formal allegations of the petition as to the nature of the parties, the setting out of the bond according to its tenor, the breach of same and defendant’s liability thereon, the salient facts alleged are that during the year 1899 plaintiff purchased from Graham & Miller, and said firm furnished to plaintiff, a large number of railway ties, at a specified price, which aggregated $21,207.10, and upon the acceptance by and the delivery to the plaintiff of these ties the latter paid Graham & Miller the aggregate amount due therefor in full; that after plaintiff had paid Graham & Miller the Bagnell Timber Company brought a suit in the Circuit Court of Pettis County against Graham & Miller and the Missouri, Kansas <& Texas Railway Company, the plaintiff herein. Before a trial the Timber Company dismissed as to Graham <& Miller and proceeded against the Railway Company alone. In this action it was claimed that there was a balance due the Timber Company from the firm of Graham & Miller and the Railway Company on account of the same ties which had been sold and delivered by said firm to the Railway Company and had been paid for by the latter. In this petition the Timber Company prayed that the judgment thus sought bq declared a lien on the lines of the Railway Company; that upon the institution of that suit the Railway Company notified the American Surety Company, the defendant herein, of said action, and that the Railway Company had already paid Graham & Miller the full amount due said firm for the ties furnished by them to the Railway Company for which the Timber Company was then demanding payment, and that the Railway Company would look to said Surety Company to protect it from any further payment on account of said ties; that said Surety Company, the defendant herein, failed and refused to pay or to cause said Timber Company to be paid the amount claimed by it, but requested the Railway Company to prosecute the suit to a final judgment, which it did; that the history of this litigation and the opinions of the Supreme Court in connection therewith are found .in 180 Mo. 420, 242 Mo. 11, and 250 Mo. 514; that by the decision rendered in the case last cited a personal judgment was finally affirmed against the plaintiff Railway Company in favor of the Timber Company and in satisfaction of said judgment plaintiff was compelled, in July, 1913, to pay the Timber Company the sum of $9,963 and interest on account of the same ties for which plaintiff had therefore paid Graham & Miller, and $436.50 costs incurred in the litigation, to plaintiff’s total damage in the sum of $12,400l.13; wherefore plaintiff prayed judgment for the penalty of said bond, to-wit, the sum of $10,000'.

Defendant, answering, admitted the execution of the bond, the former litigation pleaded, the result of same, the costs accrued, the. subsequent suit by the Timber Company, the judgment rendered in favor of that company against the Railway Company and the payment of such judgment by the latter, followed by a general denial.

Further answering, the defendant sought to set up as res adjudicatei the litigation in the Circuit Court of Pettis County wherein the Timber Company was plaintiff and the Railway Company and Graham <& Miller were defendants. On motion this part of the answer was stricken out and the defendant filéd a term bill of exceptions. At the trial, however, this defense was permitted to be interposed, subject to such objections as might be made thereto.

By consent, a plea of the Statute of Limitations theretofore stricken out of defendant’s answer was reinstated, and plaintiff filed a reply alleging that it contested the suit brought by the Timber Company at the special instance and request of the Surety Company, the defendant herein; and with the understanding that upon the termination of that litigation, if the same resulted unfavorably to the Railway Company, the rights and liabilities as between this plaintiff and this defendant in the bond suit would then be determined. A, jury having been waived, the case was heard by the court sitting as a jury in February, 1919, in the division presided over by Hon. Hugo Grimm. At the April term, 1919, the court found the issues joined in favor of the plaintiff and assessed its damages at $10,000, the full penalty of the bond. From this judgment, as stated, the defendant has appealed.

I. This is an action at law. It was tried by the court sitting as a jury. When a case of the character at bar is thus tried, the province of the Supreme Court extends Appellate Court's Province as to Review of Evidence. no further than to ascertain if the judgment is supported by any substantial testimony. When this has been determined, the findings of p erti-nent facts by the trial court are as conclusive as if their verity had been formally conceded. So firmly embedded is this rule in our appellate procedure that it is scarcely necessary, except as a matter of form, to cite precedents to sustain it. Some of the later cases reasserting this doctrine are State ex rel. Bank v. Sturgis, 276 Mo. 559, 208 S. W. 458; In re Lankford's Estate, 272 Mo. 1. 197 S. W. 147; Woods v. Johnson, 264 Mo. l. c. 293, 174 S. W. 375; Hatton v. St. Louis, 264 Mo 634, 175 S. W. 888; Cousins v. White, 246 Mo. l. c. 309.

II. , The findings of the trial court, while based upon all of the evidence, have more particular reference to the testimony upon which the defendant relies to sustain its Rule as to Bonds of Surety Companies. contentions. In th~ consideration of these contentions it should be kept in mind that tl~e general rule that sureties are the favorites of the law and that contracts made by them should be construed most strongly in their favor has no application here. The defendant is a corporation organized and empowered to act as surety for a price. Its obligations are akin to those of an insurance company; its operations are purely commercial and are exercised solely for profit and bear no resemblance to the relation sustained by a personal surety to his principal. The alleged justification for the application of the rule to personal sureties is that their contracts .are held to be in the nature of favors to the parties and are therefore founded upon considerations not moving to themselves but to the principals in the contracts for which they become sponsors. Here the consideration moves to the defendant. Its obligations are, therefore, to be construed like other contracts-in accordance with the reasonable intent of the parties as plainly indicated by their terms. [So. R. & F. Co. v. Bankers Surety Co., 184 S. W. (Mo.) l. c. 1033; Lackland v. Surety Co., 256 Mo. l. c. 140; Guarantee Co. v. Bank, 183 U. S. 402; Am. Surety Co. v. Pauly, 170 U. S. 133.] This rule of construction is applicable to obligations of companies of the character at bar3 despite the provisions of Section 1209, Revised Statutes 1909, now Section 1002 Revised Statutes 1919. [Barton v. Title Guar. & Surety Co., 183 S. W. 694; Dorr v. Bank & Surety Co., 218 S. W. 398.]

III. Of first consideration is the language of the bond itself, which must, of course, be read in its entirety. Ambiguities therein, if any, are, as in construing a policy Bond: Construction of. of insurance, to be resolved against defendant. [Henderson L. & P. Co. v. Maryland Casualty Co., 153 N. C. l. c. 279; Fitger v. Am. Bond Co., 115 Minn. l. c. 83; Forest County v. United Surety Co., 149 Wis. 327; City-Cap. Bank v. Hilson, 59 Fla. l. c. 219.] Tlie meaning of the bond, as indicated by its words, having been ascertained, we seek, by placing ourselves as nearly as possible in the attitude of the parties at the time to determine their intentions and effectuate their purpose. 'In ascertaining such intentions not only will the language of the bond be taken into consideration, but the situation and circumstances surrounding the parties at the time the obligation was made. The intentions ascertained, the object or purpose sought to be effectuated should not be defeated by a narrow interpretation or one favorable to the defendant if there be another construction equally admissible under the terms of the bond; or, stated somewhat conversely, if the bond is fairly open to two constructions, one of which will uphold while the other will defeat the plaintiff’s claim, that most favorable to it should be adopted, provided, of course, in so doing the manifest intention of the parties is not nullified. [Grocery Co. v. Fidelity & Guar. Co., 130 Mo. App. l. c. 428; Fairbanks Can. Co. v. London Guar. Co., 154 Mo. App. 327, 133 S. W. 664; Am. Surety Co. v. Pauly, 170 U. S. 133, 160; Ballard Co. v. U. S. Fid. Co., 150 Ky. 236, 150 S. W. 1, Ann. Cas. 1914C, 1211 and notes; Hormel v. Am. Bond Co., 115 Minn. 288, 33 L. R. A. 513 and notes.]

The plaintiff had a contract with Graham & Miller for the purchase from them of railway ties at a specified price.

These ties Graham <& Miller were to go into the market and buy and deliver to the plaintiff. To enforce the performance of this contract plaintiff required Graham & Miller to give it a bond. This bond, by its express terms, was for the protection and indemnity of plaintiff against all loss and damage by reason of any claims which might be made against plaintiff on account of any ties which may have been furnished by Graham & Miller to and accepted by plaintiff, and to warrant and defend the title thereto.

From these terms it is evident that the purpose of the plaintiff in requiring the bond was protection; that of Graham & Miller in giving’ it was to insure a continuance of their business relations with the plaintiff; and that of the defendant for a stipulated fee to malm the plaintiff whole in the event of the default of Graham & Miller. Thus it appears that the relations of the parties, as disclosed by the terms of the bond itself, were those of buyer, seller and indemnitor. Other provisions of the bond lend force to this conclusion, viz.: that Graham & Miller, tie contractors, engaged in furnishing railway companies with ties, have for several years been furnishing plaintiff with ties and that the latter is willing to continue to buy from them if the ties furnished conform to the specifications and requirements of plaintiff and are accepted by its agents after inspection—this upon the condition that Graham & Miller will protect and indemnify plaintiff against all loss and damage by reason of any claims which may be made against the plaintiff on account of any ties which have been or may- be furnished by Graham & Miller and accepted by plaintiff and to warrant and defend the title thereto.

IV. The testimony disclosed that the total amount paid by the plaintiff to Graham & Miller for ties during the period nominated in the bond was $21,207.10. The Review of the Testimony. different statements of account rendered by Graham & Miller against plaintiff and upon which the various payments were made by plaintiff to Graham & Miller, or literally to the Bank of Commerce of St. Louis for them, aggregating the above amount, were each in the following’ form: “ Missouri, Kansas & Texas Railway Company to Graham & Miller, Dr.,” followed by a statement of the ties furnished and the amount due for same. There is no question but that the amount involved in this litigation, which has heretofore been paid by plaintiff to Graham & Miller, is for ties included in tlie invoices or statements referred to, but no attempt is made in this or in any former litigation to segregate or distinguish them from any of the other ties furnished by Graham & Miller to plaintiff. That they were all delivered to or placed upon the right of way of the plaintiff there is likewise no question. This, however, is not determinative of any issue here involved. All of the parties were necessarily familiar with the relations they sustained towards each other and the character of plaintiff’s business, which re-qnired such deliveries of the ties whether purchased directly by it or through the medium of its contractors. Despite the manner of the deliveries, therefore, there is, in our opinion, ample evidence to sustain the conclusion that all of these ties were bought by Graham & Miller directly from the Bagnell Timber Company for plaintiff and were delivered to, accepted by and paid for in full by plaintiff. If not.so, what was the reason or purpose of those invoices and statements of account rendered in the ordinary course of business by Graham & Miller to the plaintiff and the latter’s payment of all of same without cavil as to the regularity of the accounts or plaintiff’s liability thereon1? Other testimony offered by plaintiff tended to show that this entire transaction, so far as the plaintiff and Graham & Miller were concerned, was regarded as a contract of purchase by the former from the latter and that the total liability thus incurred was discharged in accordance with this understanding, which we cannot reasonably conclude was not indicative of the intention of the parties. We are not left to this evidence alone to sustain this conclusion. The entire amount due by plaintiff to Graham & Miller for these ties was paid by plaintiff directly to the Bank of Commerce of St. Louis under an assignment made to said bank by Graham & Miller and was receipted for by said bank and credited to the account of Graham & Miller. In addition, the correspondence of Graham & Miller with plaintiff at the time cannot be otherwise construed than as sustaining the conclusion that these sales, as then understood by all of the parties, were made in the first instance by the Timber Company to Graham & Miller and by the latter to the plaintiff. If this1 were not true, then why the creation of the intermediary or purchasing- company, the execution of the bond and the manner in which the accounts were rendered and paid? The evasive letters of the defendant to the plaintiff in the year 1900 lend no substantial aid in the settlement of the question involved and are not considered in the summing- up of the testimony. Moreover, the conduct and correspondence of the Timber Company made a part of the evidence herein furnishes further evidence as to the nature of the transaction out of which the controversy at bar arose. Note, in addition, these facts:

Before any lawsuit was commenced and when the matter was fresh in the minds of the officers of the Timber Company, that company served notice of a material-man’s lien on the plaintiff, where this language is used:

“Take notice, that we hold a claim against the Missouri, Kansas & Texas Railroad Company for railroad ties furnished and delivered to said Railroad Company, under and pursuant to a contract with Graham & Miller, tie contractors of said Railroad Company, as shown by the following- account, to-wit:”

Then follows an itemized statement of the Timber Company’s account, identical with the account it subsequently preferred and prosecuted against the Missouri, Kansas & Texas Railway Company and Graham & Miller.

Further than this, before the Timber Company brought suit against the Railway Company and Graham & Miller, William Bagnell, the president of the Timber Company, sent the following notice to Graham <& Miller:

“We thereby serve notice on you' that if the balance of the account on ties delivered to the M., K. & T. Ry. is not fully paid by October 9th, that we will file a lien on the M., K. & T. Ry! on that day, and we wish you would have the kindness to make this settlement so as to avoid this trouble and expense,”

If further persuasive proof were needed to define the relation which the firm of Graham & Miller, the principals in the defendant’s bond, sustained to the Timber Company in this transaction, it is supplied by this notice.

It is quite clear that the Timber Company at the time Rad some doubts about its ability to maintain a lien claim against the Missouri, Kansas & Texas Railway Company, and so it amended its notice, and subsequently claimed that the ties were sold to the plaintiff and Graham & Miller jointly. But it is now contended that the judgment rendered in favor of the Timber Company against the plaintiff established the fact that the ties in controversy were sold by the former to the latter and not to Graham & Miller and hence there is no breach of the. bond. The probative force of this fact as constituting a plea of former adjudication we will discuss later. Not only was this fact not established, but it was not necessary to establish it to entitle the Timber Company to a recovery in that action. Graham & Miller may have so conducted the business with plaintiff’s knowledge as to render the latter liable to the Timber Company for the ties, without destroying the relation of seller and buyer between Graham & Miller and plaintiff. And while the enforced satisfaction of the liability of the plaintiff to the Timber Company would be a valid defense to an action by Graham & Miller against the plaintiff, it would not destroy the latter ’s rigfit of action against the former, or the surety on their bond, in a suit to recover the amount paid by plaintiff to the Timber Company.

We therefore rule that the proof here adduced is sufficient to sustain the issues pleaded by plaintiff and we affirm the ruling of the trial court to that effect.

Before dismissing the question as to the quantum of proof it is not inappropriate to say, preliminary to the discussion of the next contention, that we have found the testimony for the plaintiff in the instant case much fuller and more forceful than in the preceding cases in relation to the matter at issue.

Y. The rulings of this court in the former suits concerning the matter in controversy will disclose, whether it has been judicially determined, as contended by defendant, that the Bagnell Timber Company Former Adjudication. sold these ties to the Railway Company and hence there is no liability on the part of the defendant. We have examined with some degree of care not only the opinions but the files in the three cases heretofore cited in which this court ruled upon certain feat-tures of this controversy. What, in short, did the cases in question determine?

In the first (180 Mo. 420)., the Bagnell Timber Company brought suit to recover a balance claimed to be due on the ties here in controversy against the Missouri, Kansas & Texas Railway Company and Graham & Miller upon a joint contract. This proceeding resulted in a judgment for the plaintiff, in which this court, upon an appeal therefrom, reversed and remanded the case, and held, first, that the plaintiff was not entitled to a lien against the Railway Company, and, second, that in a suit on a joint contract a personal judgment could not be rendered against the Railway Company, for the reason that there was no proof of the existence of the joint contract which had been sued on.

In the second (242 Mo. 11), between the same parties . as in the first, there being no service upon Graham & Miller, the suit was dismissed as to them. Upon an ap-' peal from a judgment for defendant this court reversed and remanded the case, and receded from its ruling in the former case as to the nonliability of one defendant in a suit on a joint contract, and held that, although the suit was brought on a joint contract, if the evidence showed that the plaintiff made the contract with the Railway Company, either jointly or severally, and the record afforded evidence of the submission of that issue to the jury, then the plaintiff would be entitled to recover. This in recognition of the statute (Sec. 2769, R. S. 1909, now Sec. 2155, R. S. 1919) declaring that all contracts which by the common law are joint only shall be contraed to be joint and several.

In the third (250 Mo. 514), between the same parties, there was, as before, no service on Graham <& Miller and the suit was dismissed as to them. A trial resulted in a judgment for. plaintiff, the Timber Company, which, upon appeal, was affirmed by this court. After ruling upon the admission of certain testimony not relevant here, the court held that there was evidence tending to prove that the contract for the sale of the ties was made between the plaintiff and the defendant and that this issue was properly submitted to the jury,; and that two instructions approved in the former case (242 Mo. 11) were not erroneous, which declared, among other things, that if the jury found the facts as therein stated and that the ties were delivered either under a contract made by plaintiff with the Railway Company and Graham & Miller or the Railway Company alone and that a balance was yet due plaintiff, then the finding should be for it and its damages assessed as stated. The objection urged to these instructions was the insertion in each of the above italicized phrase, which the court held to be authorized under the evidence and in view of the nature of the contract.

This inquiry discloses no ruling in either of these cases, either in express terms or by necessary implication, which lends color to the contention that it has heretofore been judicially determined that the Railway Company did not buy these ties from Graham & Miller but from the Bagnell Timber Company. In the absence of such a ruling the futility of the contention becomes evident. All that was determined which constituted a ruling decisive of that ease was the liability of the Railway Company to the Timber Company. With the reasons therefor we are not concerned further than they may be held to affect the disposition of the instant case.

A more cogent reason exists, however, why the plea of former adjudication cannot properly be interposed in the instant case. It is_ elementary that the concurrence of four well defined identities are necessary to the successful interposition of this plea. They are: identity of the thing sned for; identity of the canse of action; identity of persons and parties to the action; and identity as to the quality of the person for or against -whom the claim is preferred. [Scheurich v. Empire Dist. Elec. Co., 188 S. W. (Mo.) l. c. 117; Dibert v. D’Arcy, 248 Mo. 617, 154 S. W. 1116; State to use v. Hollinshed, 83 Mo. App. 678; Pickel Stone Co. v. Wall, 108 Mo. App. 495.]

Comparing the suit at bar with the three former ones we have reviewed, concerning matters incident to this controversy, Ave find that neither the parties nor the causes of action were the same. In the latter the plaintiff was the Bagnell Timber Company, and the defendants, as the suits were brought, were the Missouri, Kansas & Texas, Railway Company and Graham & Miller; while in the former, plaintiff is the Missouri, Kansas & Texas Railway Company and the defendant is the American Surety Company. In the Bagnell suits- the cause of action was for a balance due on an account, which would have been barred in five years, whereas in the instant case the cause of action is based on a bond in writing under seal which was not barred for ten years. These facts will suffice to demonstrate that at least three of the required identities are absent here, to-wit, that of the thing sued for, the cause of action and the persons or parties thereto.,

In addition, the well-established rule must not be overlooked that before an action can be held to be res adjudicata the parties must have been adversaries in the first suit. A standard text thus concisely states this doctrine:

“Not all the parties to a suit are necessarily concluded by the judgment or decree in a subsequent suit between the same parties, but only those between whom the matter in issue in the second suit was adjudicated. To be concluded they must have been adversary parties.” [24 Am. & Eng. Ency. of Law (2 Ed.), p. 731.]

Even more forceful is the language of a well recognized treatise on the subject, as' follows:

“In order to make a judgment conclusive on parties they must be adversary parties in the original action.

Thus, a judgment against A and his sureties is no bar in an action between one surety and his co-sureties to recover of each his proportionate share of a judgment of amercement that had been collected of him; while it establishes the demand, it does not establish the liability of the sureties between themselves; that point is not before the court in the action 'wherein the original judgment was rendered.” [Herman on Estoppel and Res Judicata, sec. 138.]

In harmony with the rule as thus declared is the ruling of this court in Charles v. White, 214 Mo. l. c. 211, as follows:

“It may be said that unless the defendants contest an issue with each other, either upon the pleadings between themselves and the plaintiffs, or upon cross-pleadings betweén themselves, the judgment or decree will not be res adjudicaba in subsequent litigation between them. There can be no doubt that upon proper pleadings a judgment may determine the rights of the defendants even between themselves, and our code provides for such a proceeding, but a judgment against defendants, if there are no issues between them,' does not bind them as against each other.” (Citing cases.)

To a like effect are Womach v. St. Joseph, 201 Mo. l. c. 480; Garland v. Smith, 164 Mo. 1; O’Rourke v. Lindell Ry. Co., 142 Mo. 342; Springfield v. Plummer, 89 Mo. App. 515; McMahan v. Geiger, 73 Mo. 145. There is, therefore, no merit in the plea of res adjudicaba interposed in this case.

VI. It is further contended that the damages sought to be recovered are not within the terms of the contract. In our former discussion of the terms of the bond, the allegations of the petition and the nature of the evidence, we incidentally at least disposed of this Damages Pleaded Within Terms of Contract. contention. In the finat disposition ot the same, however, it m~y not be inappropriate to again say that the allegations of the petition were based upon the terms of the bond, that a breach of its co- venants was pleaded in that Graham & Miller, the principals, and the American Surety Company, the defendant, as surety, had violated said covenants in not holding the plaintiff harmless by reason of a claim made against it bythe Timber Company on account of ties furnished by Graham & Miller to the plaintiff. In view of these specific allegations, supported by the proof adduced, the error assigned that the damages sought were not within the terms of the contract is shown to be unfounded.

VII. It is contended that plaintiff's canse of action is barred by the statute. In a action upon a bond of Statute of Limitations. indenmity, as at bar, in which the language of the writing provides for the payment of money or property upon the breach of the conditions therein stated, suit may be brought thereon within ten years after the cause of action shall have accrued. [Sec. 1888, R. S. 1909, now Sec. 1316, R. S. 1919.] The instrument sued on is held to be within the statute when it provides in express terms or by fair implication for the payment of money or property, and this rule is held to apply although the plaintiff may, to make out his case, be required to go beyond the terms of the writing to show performance on ~he part of the plaintiff and a breach on the part of the defendant. [Knisley v. Leathe, 256 Mo. l. c. 360; Curtis v. Sexton, 201 Mo. l. c. 230.] A cause of action accrues upon an instrument of the character of that at bar when the actual damages are sustained, in consequence of the breach of the contract. While it is practically conceded by all of the authorities that in cases of breach of contract the Statute o~ Limitations begins to run against the right of the person damaged to recover, from the time of the breach, and not from the time actual damages are sustained in consequen~e thereof. Howeve; in case the contract broken is one of indemnification against loss or damage, the general rule is that the cause of action accrues and the Statute of Limitations beans to run at the time the damage occurs. [Rowsey v. Lynch, 61 Mo. l. c. 563; Purcell v. L. T. Guar. Co., 94 Mo. App. 5.]

This court, spealdng’ through HAugh, J., in the Bowsey Case, said:

“If the covenant in question is simply a contract of indemnity, then there was no breach thereof until the plaintiff suffered damages by the sale of his property on the 8th day of November, 1862, and his right of action was not barred. If, on the contrary, the covenant in question is not'a contract of indemnity, but an affirmative covenant to pay a certain sum of money at specified times, then a right of action arose in favor of the plaintiff, upon the failure of the defendant to pay at such times.”

In State ex rel. v. Logan, 195 Mo. App. 175, a well considered case recently decided by the Springfield Court of Appeals among other things the court said:

“According to defendant’s contention relators’ cause of action was barred before it came into being, for certainly relators never had any cause of action prior to their having any dealings with or interest in this land. To so construe the statute is violative of the fundamental rule applicable to the construction of all limitation statuses, to-wit: that the same begins to run "only when the cause of action asserted accured to the person asserting it and it does not accrue in the legal sense until it comes into being and the parties benefited have a right to assert same in court (25 Cyc. 1067).”

In addition to the numerous authorities cited and discussed in the Logan case, are the following: Huse v. Adams, 104 Mo. 91; State ex rel. Chatham v. Finn, 98 Mo. l. c. 541; Lesem v. Neal, 53 Mo. 412; State ex rel. Owen v. Hollenbeck, 68 Mo. App. 366; Boyd v. Buchanan, 176 Mo. App. 56.

An exhaustive note to Aachen v. M. & F. Ins. Co., 15 L. R. A. (N. S.) l. c. 164, reviews numerous cases de cided by courts of last resort in other jurisdictions in harmony with ohr own rulings, in which it is held, in suits upon bonds of indemnity, that the cause of action accrues and the statute of limitations- begins to run at the time the damage occurs. We find no authority to the contrary.

The judgment in favor of the Bagnell Timber Company against the plaintiff was affirmed by this court in 1913- and paid in full in the same year. The action at bar was brought in 1915. Regardless, therefore, of whether it be held that the cause of action accrued at the time of the affirmance of that judgment or upon its payment by plaintiff:, the instant case was timely brought. The plea of the bar of the statute is therefore without merit.

Other contentions have not been preserved in a manner to entitle them to a review.

Aside from what we regard as clear and compelling precedents cited in support of the conclusions reached herein, the righteousness of plaintiff’s cause appeals strongly to our sense of justice. Plaintiff has twice paid for these ties—each time in good faith—once under its contract and again in satisfaction of a judicial determination of its liability. To hold now that it cannot recover from a paid surety of a principal whose default rendered imperative the last payment, would, in our opinion, work a grievous wrong.

The judgment of the trial court should, therefore, be affirmed.

All coucur, except Higbee, J., who dissents in separate opinion, and Woodson, J., who dissents.