All the opinion holds, or was intended to hold, is that the obligation evidenced by the writing set out in defendant's plea 2, when construed in connection with the facts alleged in the complaint, is not an indemnity against loss or damage merely, but an indemnity against liability, and that the cause of action arises when the liability of the indemnitee is fixed by judgment against him.
That is not to say that the judgment against the indemnitee is conclusive on the indemnitor. Whether this is so depends upon the facts and circumstances, not appearing upon the record. In the absence of stipulation to that effect, and notice to the indemnitor and opportunity to defend, a judgment against the indemnitee is not conclusive of liability against the indemnitor. "The omission to give notice to the indemnitor, however, does not affect the right of action against him, but simply changes the burden of proof and imposes upon the indemnitee the necessity of again litigating and establishing all of the actionable facts." 31 C. J. 463, § 62. And the indemnitor may show that the indemnitee had a good defense to the action against him which he negligently failed to make, or he may plead and show that the judgment against the indemnitee was obtained by fraud and collusion. Eva v. Andersen, 166 Cal. 420,137 P. 16; Bridgeport F. M. Ins. Co. v. Wilson, 34 N.Y. 275; Western U. Tel. Co. v. Gest, 183 App. Div. 548,170 N.Y. S. 808; Id., 228 N.Y. 606, 127 N.E. 923; 31 C. J. 463, § 62.
Application overruled.
ANDERSON, C. J., and SAYRE and THOMAS, JJ., concur. *Page 117