concurring.
I concur in part and concur in the result. Specifically, I agree that a genuine issue of material fact exists about whether IMCO was the principal debtor on the bond; that reading the bond in conjunction with the affidavits of Grebel and Mecom shows there are unresolved factual issues that must be decided by a trier of fact; and as a consequence, reversal of the summary judgment for Surety is mandated.
I write separately to emphasize that, aside from the factual issue about whether IMCO was the principal debtor on the bond, Surety cannot invoke the summary remedy provided by section 433.070 unless a judgment was entered for Ernest Bland against Surety. See Wilkerson v. Sampson, 56 Mo.App. 276, 280 (Mo.App.1894) (holding summary remedy provided by section 8351, RSMo 1889 cannot be invoked, except in cases where there has been a judgment rendered against the surety).1 See also Hammons v. Ehney, 924 S.W.2d 843, 846 (Mo.banc 1996) (citing Wilkerson, 56 Mo.App. 276, as part of an analysis of legal versus equitable contribution principles). As stated in n. 4 of the principal opinion, a judgment for Bland against Surety appears nowhere in this record. Although the possible absence of such a judgment was not raised on appeal, it is an issue that should be addressed on remand.
. Section 8351, RSMo 1889 is identical to section 433.070, RSMo 2000.