(concurring). The writer, after carefully considering the opinion prepared by Judge SADLER, in this case, agrees to the disposition made of the case, and will briefly state the reasons therefor. The evidence was sufficient, in the opinion of the writer, to authorize the finding of the following facts, and, in support of the judgment of the district court, we are authorized to assume that such facts were found, viz.: That the Bank of Snyder, at the request or direction of Howell & McCue, appropriated the special deposit to the payment of a debt of Howell & McCue due to the bank; that the bank acted innocently, relying upon the representation of Howell & McCue that the release provided for in the contract between Patterson and Howell & McCue had been obtained; and that when the fund was claimed by Patterson that Howell & McOue in effect advised the bank to defend the suit brought by Patterson, and consulted with the bank as to what defenses should be presented.
Under these circumstances, the writer thinks there was an implied agreement that, if the suit was lost, Howell & McCue would indemnify the bank.
“When an act has been done by the plaintiff under the express directions of defendant, which occasions an injury to the rights of third persons, defendant will be bound to indemnify plaintiff against the consequences of the act, provided such act is not apparently illegal in itself, and is done honestly and bona fide in compliance with defendant’s directions.” 22 Cyc. p. 95.
We think the principle announced above applicable to this case. The bank held the $1,000 deposit subject to the terms of the contract between Howell & McCue and Patterson. It was its duty to hold the fund until Howell & McCue had performed their agreement to obtain the release. Howell & McCue represented to the bank that the release had been obtained, and directed the bank to apply the deposit to the payment of Howell & McOue’s debt. Under these circumstances, the law implied an agreement on the part of Howell & McCue to indemnify the bank against the claim of Patterson to the fund.
When the bank was compelled to pay the judgment obtained by Patterson, it, for the first time, had a cause of action based on the implied contract of indemnity, and therefore the cause of action was not barred by limitation when this suit was brought. Ample authority is cited in the opinion of Judge SADLER to support the last proposition. The writer thinks it necessary, in order to indicate clearly the reasons for his concurrence in the disposition of this case, to furnish the foregoing memorandum of his views.