On Appellant’s Motion for Rehearing
Appellant’s motion for rehearing deals largely with that portion of this court’s original opinion in this case in which the action of the trial court in denying her any recovery under her principal cause of action was affirmed. Nothing is presented in that portion of the motion or her brief in support thereof which causes us to alter our views as stated in our original opinion.
In the latter portion of the motion, however, dealing with that portion of our opinion which awarded her a recovery in part upon her alternative cause of action, the appellant in her motion has urged some matters which require further discussion. In calculating the sum of money due and owing to the appellant, we arrived at the figure of $13,100. In her brief in support of the motion for rehearing the appellant has pointed out that the first $350' monthly payment due the appellant not barred by the four-year statute of limitations was that payment due July 5, 1944, and the last of such payments was due August 5, 1948. Her mother, Mrs. Dickson Fal-vey, died on August 9, 1948. Therefore at that time there were fifty $350 monthly *473payments due and unpaid. This . totals $17,500. The aggregate of the $100 payments made by Dr. Falvey is $4,100. The balance due defendant is $13,400, as correctly stated in appellant’s motion.
The appellant also requested in her motion that we make plain her right to recovery ' of interest upon her judgment. While the opinion as written is not the judgment of the court, we will write into the judgment that the appellant shall recover interest on all amounts awarded to her from the date of the judgment of this ■court at the rate of 6 percent per annum until paid.
The appellant’s right to recover interest upon the delinquent payments is not questioned and we omitted any reference thereto in the original opinion. She will also he awarded interest at the rate of 6 percent per annum on each delinquent amount of $250 from the date of each separate delinquency in payment.
Appellant complains in her motion of our disposition of her claim for $3,000 which she alleged was due her because of the breach of Dr. Falvey’s agreement to pay the premiums on a $3,000 life insurance policy. We held that the matter was not briefed in her original brief and reply brief and therefore we considered the matter waived. In her motion for rehearing and the brief thereunder ,she points out that the matter is included by reference to her points in the brief under her alternative cause of action. We will therefore consider her claim for $3,000.
From the statement of facts it was shown ■on the trial that the policy in question was issued on the life of Dr. Falvey in 1904 and was canceled in 1932. It was canceled because a loan was made on the policy in 1930, the loan was never repaid and after the policy loan and interest exceeded the cash value of the policy it was canceled by the company. The breach of this agreement to keep up the payments of premiums on this policy therefore occurred in 1932, 16 years before this suit was filed. The appellant makes the statement in her brief that after Dr. Falvey’s death she was damaged in the sum of $3,000 because of his failure to make the premium payments. The appellees have urged the four-year statute of limitations as a defense to all of her claims, including this one. No argument or authority is presented anywhere by the appellant in support of her assumption that the statute of limitations began to run against this claim at the time of Dr. Falvey’s death rather from the time of his breach of his agreement, which occurred in 1932. We note in the contract between Dr. Falvey and Mrs. Dickson Falvey that he agreed to pay when due all the premiums to keep-in force the life insurance and to promptly deliver to Mrs. Dickson Falvey at Austin, Texas, such receipts from time to time as would show that this provision of the contract had been complied with. There is no allegation anywhere in her pleadings, and no' proof in the record, that Mrs. Dickson Falvey did not know that after 1932 Dr. Falvey did not make any payments- of the premiums on this policy of life insurance. Nothing is pleaded or proved which in our opinion would toll the statute of limitations and prevent its application to her claim for breach by Dr. Falvey of his agreement to pay the premiums. We think that the rule applying to this claim is stated in 54 C.J.S. Limitations of Actions, § 151, p. 94 as follows: “The right of action for breach of a continuing covenant accrues from day to day as long as the breach continues, and any claim for a breach back of the ■statutory period within which action may be brought is barred.” We believe that the appellant has observed this as a rule of law in her action upon her alternative claim for damages for the breach of Dr. Falvey’s agreement to make the monthly payments to her mother and brought her suit only for those payments not in default more than four years at the time her suit was filed. Dr. Falvey’s breach of his agreement to pay the premiums occurred 16 years before the suit was filed. For these reasons we believe that appellant’s claim for $3,000 is barred by the four-year statute of limitations.
Appellant’s motion rightfully complains of our choice of language in disposing of her third point in her original brief, and *474also rightfully complains of our disposition of such a point. The trial court held that the original .agreement between Dr. Falvey and Mrs. Dickson Falvey was modified by a subsequent agreement. Both appellant and appellee were dissatisfied with such "a ruling and we held that there had been no new agreement between the parties modifying the original contract, either expressly or by implication. -Under .such agreement, however, the trial court awarded the .appellant the sum of $1,592.48, of which amount $900 was for $100 monthly payments for each of the last nine months of Mrs. Dickson Falvey’s life. -The balance of $692.48 was for the unpaid current premium due on the balance of the policy loaned upon the $10,000 life insurance policy involved in this suit. We now believe that the appellant should be awarded'judgment for such sum of $692.48. This $10,000 life insurance policy was one of the life insurance policies which Dr, Falvey assigned in his contract with Mrs. Dickson Falvey and he kept up the premium payments until the last year of his life. The insurance company paid the face value of the policy of $10,000' to Mrs. Dickson Falvey, less a deduction of $692.48. It is shown in the statement of facts that this sum was for the current, annual premium and a policy loan of $409.80 due at the time of Dr. Falvey’s death.
The appellant’s motion for rehearing is therefore overruled in part as follows: Judgment in her favor in her principal cause of .action is denied; recovery for the $3,000 insurance money lost as a result of Dr. Falvey’s default in performance of his promise to keep up premium payments in 1932 is denied. Appellant’s motion for rehearing is granted in part and on her alternative cause of action she is awarded judgment for the total amount of the unpaid monthly installments aggregating $13,-400, together with interest on the unpaid installments from the date of each installment’s due date until the date of this judgment at the rate of 6 percent per annum; for the sum of $692.48 with interest thereon at the rate of 6 percent per annum from April 8, 1948 (the date when the.$10,000 policy was paid to Mrs. Falvey with a.deduction of $692.48) to the date of this judgment. The judgment of this court shall bgar interest at the rate of 6 percent from the date thereof.
In all other respects the appellant’s motion for rehearing is overruled.