This is аn appeal from a summary judgment entered in favor of appellee L.S.S. Corporation on a cross-claim for indemnity against appellants D. R. Bernard, J. B. Richardson, W. R. Knowles, and Darrell D. Wilson, based upon aрpellants’ written guaranty of a lease agreement by leasee, Mother Blues, Inc.
We affirm the judgment of the trial court.
On December 29, 1967, Mothеr Blues, Inc., leased premises from the L.S.S. Corporation for use as a nightclub. Subsequently, Mother Blues, Inc., failed tо pay admission taxes to the State. On December 8, 1969, the State imposed a statutory lien on the leased premises under Tex.Laws 1957, Ch. 34, § 1, at 70. 1 On August 16,1973, the State sued Mother Blues, Inc., for the admission tax delinquency, and L.S.S. Corporation for foreclosure of the statutory lien. L.S.S. Corporation cross-claimed against Mother Blues, Inc., for indеmnity under sections 7 and 13 of the lease for any liability it might incur for the failure of Mother Blues, Inc., to pay admission tаxes during the period from April 1, 1968 to September 30, 1970, and against the appellants under their guaranty for any liability L.S.S. Corporation might incur for the failure of Mother Blues, Inc., to pay admission taxes between January 1,1968 and September 30, 1969, the period the guaranty was in effect.
On January 30, 1975, the district court granted summary judgment to the State of Tеxas for $13,527.77 plus interest against Mother Blues, Inc., and for foreclosure of the State’s statutory lien on the leаsed premises owned by L.S.S. Corporation. The court then granted summary judgment to the L.S.S. Corporation on its cross-claim against Mother Blues, Inc., and the appellants in the sum of $18,527.77 for indemnity and attorney fees.
Appellants bring their appeal from the summary judgment against them on the cross-claim of L.S.S. Corporation.
Appellаnts are before us on. three points of error, contending, first, that ap-pellee’s cause of action for indemnity for the tax liability was barred by the four-year statute of limitations; second, that the appellаnts were not personally liable to ap-pellee under the guaranty because the guaranty period had expired before the State brought suit on the unpaid taxes and the statutory lien; and third, that summary judgment was imрroper because of insufficient proof offered by appellee and the existence оf fact issues.
The indemnity clause in question is found in section 13 of the lease. It provides, in pertinent part:
“Tenаnt agrees to indemnify and save landlord harmless from all claims (including costs and expenses of defending against such claims) arising (or alleged to arise) from any act or omission of Tenant
We construe this clause as a promise to indemnify against liability. As such, a cause of action accrues to the indemnitee only when liability becomes fixed, as upon rendition of a judgment.
Russell v. Lemons,
Appellants contend in their second point of error that their guaranty had expired on September 30, 1969, and was no longer in *411 effect when appellee obtained judgment for indemnity against Mother Blues, Inc., on January 80, 1975. Consequently, they maintain they cаnnot be held personally liable under the guaranty for the indemnity judgment against Mother Blues, Inc.
We agree that thе guaranty expired by its own terms on September 30, 1969. However, it was while the guaranty was in force that Mother Blues, Inс., incurred liability for payment of the admission taxes. The guaranty agreement made appellants pеrsonally liable for performance by Mother Blues, Inc., of all the lease provisions, and it is undisputed that the failure to pay admission taxes when due was a breach of section 7 of the lease, by which Mother Blues, Inc., promised “(to) comply with all Federal, State, Municipal, and other laws, ordinances, rules, and regulations applicable to the leased premises, including business conducted thereon.” Appellants сannot escape personal liability on their guaranty for the non-performance of Mother Blues, Inc., of its lease obligations while the guaranty was in effect, simply because the assured party, here L.S.S. Corporation, had no cause of action for indemnity until it had incurred liability by virtue of the rendition of judgment for the Stаte against Mother Blues, Inc., and foreclosure of the statutory lien on its real property.
We also overrule appellants’ third and last point of error which asserts that the trial court erred in granting summary judgment. The questions presented the court were solely questions of law relating to the interpretation of the guaranty contract. The facts giving rise to the lawsuit are admitted.
Gibbs v. General Motors Corp.,
The judgment of the trial court is in all things affirmed.
Affirmed.
Notes
. Until this provision was amended in 1971 the State could obtain a lien for unpaid admission taxes on “all property used by the owner or operator of any place of amusement.” (Emphasis added)