The ground of the demurrer available for our consideration is that the action is barred by .the statute of limitations. The agreement by which defendant was to pay does not in terms fix a particular time for payment; and unless, by legal inference from the terms of the contract, or from the averments of the petition, a rule may be deduced that would toll the running of the statute to a time within the statutory period, the action must be treated as barred. Keeping in view the query, when did the cause of action accrue ? Let us first look to the contract, to ascertain its bearing on the question. By its terms, the defendant assumed and agreed to pay one hundred and twenty-nine seven hundred and forty-two hundredths per cent, of the indebtedness of Carroll township that existed at a prior date, June 5, 1871. It was agreed that the defendant should share pro rata all discounts or money saved on a compromise of any of the indebtedness. There is nothing in the contract to show a purpose of, or a necessity for, delaying an early adjustment of the affairs. Aiding the contract by averments of the petition, and such a purpose or necessity is no more apparent. It does not appear that at the time of making the agreement the amount of the indebtedness was not definitely known, nor that there was pending litigation or disputes, or any facts to negative a presumption that the parties intended prompt payment. The *99plaintiff treats itself as the party of primary liability to its creditors; and, as we view the contract, its purpose was to raise funds to aid in the payment of its debts. We see nothing in the terms of the contract to require the plaintiff, as between itself and the defendant, to first pay, and then seek repayment; but, with the primary obligation for payment upon it, it could at once demand the pro-rata share of the defendant, and maintain its action therefor.
Appellant’s argument is based upon the theory that the contract “was a continuing one,” and, as we understand, that its right to demand payment depended, from time to time, upon its payments of the different debts. We can only say, as in substance we have said before, that the averments of the petition do not justify such an inference. The contract is to pay a certain per cent, of the indebtedness, not of the separate debts; and the defendant’s liability in no manner depended on the different items of the plaintiff’s indebtedness, but upon the aggregate amount at a particular date. If the indebtedness should be lessened by compromise, the defendant should have a pro-rata share of such benefits. The action is at law, and the right of recovery depends upon a strict legal liability. No excuse for the long delay is offered on the part- of the plaintiff ; and, so far as the record discloses, all matters could have been as well adj usted in two years as in fifteen. What might have been the effect of a showing that disputes or litigation was pending or anticipated, and that payments by the defendant were not to be made until after adjustment, is not for us now to determine. It is certain that we cannot assume such a state of facts, to avoid the operation of the statute.
An exhibit to the petition contains an itemized statement of “Expenses of litigation,” and some of these items appear from that statement to have been paid as late as September, 1879; but when the litigation took place, or what it was about, does not appear. We think the judgment below should be
Affirmed.