A distinction, sound in principle, though often difficult to draw in fact, must be taken between a contract on the one hand to assume or pay or indemnify against a debt or liability of the promisee and a promise on the other hand to indemnify only against damage caused by such liability. The cases cited in the preceding section relate to promises to assume or pay an indebtedness. Similarly a promise to indemnify against the existence of a liability is broken as soon as the liability is incurred, and the promisee is entitled to recover damages based on the amount of his liability although he has not satisfied it.22 On the other hand, a promisor who has undertaken merely to indemnify against damage is liable only when actual payment has been made by the promisee, or damage suffered by him; and then only to the extent of such payment or damage.23

20 Loosemare v. Radford, 9 M. & W. 657.

21 Lethbridge v. Mytton, 2 B. & Ad. 772; Wetmore v. Green, 11 Pick. 462; Cady v. Allen, 22 Barb. 388; Manahan v. Smith, 19 Ohio St. 384. Cf. the damages for breach of a general covenant against encumbrance, sutpra, {1401.

22 McBeth v. Mclntyre, 67 OaL 49; Stephens v. Pennsylvania Casualty Co., 135 Mich. 189, 97 N. W. 680; Anoka Lumber Go. v. Casualty Co., 63 Minn. 286, 06 N. W. 353, 30 L. R. A. 689; Gilbert v. Wiman, 1 N. Y.

550, 49 Am. Dec. 359; Fenton v. Casualty Co., 36 Or. 283, 56 Fac. 1096, 48 L. B. A. 770; Pickett v. Casualty Co., 60 S. C. 477, 38 S. E. 160, 629; Hoven v. Assurance Corp., 93 Wis. 201, 67 N. W. 46, 32 L. R. A. 388. See also supra, Sec. 1274. 23 Lott v. Mitchell, 32 Cal. 23; Spencer Savings Bank v. Cooley, 177 Mass. 49, 58 N. E. 276; Conner v. Bean, 43 N. H. 202; Rector, etc. of Trinity Church v. ffiggins, 48 N. Y. 532, 537. As to equitable relief on such promises, see tupm, Sec.1274 ad fin.