King v. Capitol Amusement Co.

On Rehearing.

BROWN, J.

All the opinion holds, or was intended to hold, is that the obligation evidenced by the writing set out in defendant’s plea 2, when construed in connection with the facts alleged in the complaint, is not an indemnity against loss or damage merely, but an indemnity against liability, and that the cause of action arises when the liability of the indemnitee is fixed by judgment against him.

That is not to say that the judgment against the indemnitee is conclusive on the indemnitor. Whether this is so depends upon the facts and circumstances, not appearing upon the record. In…