ON MOTION FOR REHEARING
It has been called to our attention that the question of interest has not been adjudicated herein.
In the case at bar, Great American as surety repudiated the bonds prior to the date (December 7, 1967) on which Appellant as obligee could have made demand upon the surety to pay the amount the principals failed to pay. In view of the repudiation by Great American, Appellant was relieved of making a useless formal demand on the surety for payment. American Fidelity & Casualty Co. v. Williams, 34 S.W.2d 396, 403 (Tex.Civ.App. Amarillo, 1931, error ref’d); Womack v. Allstate Ins. Co., 156 Tex. 467, 296 S.W.2d 233 (1957); Restatement of Contracts, Sec. 306 and Comment.
In the circumstances, Great American’s obligation to pay Appellant arose immediately on the failure of the principals to pay on December 7, 1967 the sums assured by the bonds. It therefore became liable for interest at the legal rate (Tex. Rev.Civ.Stat.Ann. art. 5070) from December 7, 1967 on the $300,000 and $170,000 sums it failed to pay at that time.
Appellees’ Motion for Rehearing is overruled.