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3. TAXATION (§ 72*)-PROPERTY SUBJECT TO TAX-FOXES "STOCK IN TRADE" - "MER

CHANT."

Pub. St. 1901, c. 55, § 7, cl. 6, provides for the taxation of "stock in trade, whether of merchants, shopkeepers, mechanics, or tradesmen, employed in their trade or business," and that, for the purpose of taxation, raw materials, manufactures, and vessels shall be deemed "stock in trade." Held that, while the word "stock" includes all useful animals, including a fox pack, whether kept for sale or for breeding purposes, the word, as used in such act, applied only to property employed by merchants in their business, and since one raising foxes and selling them is not a "merchant," such foxes would only be taxable to one buying and selling them as a merchant.

[Ed. Note. For other cases, see Taxation, Cent. Dig. § 157; Dec. Dig. § 72.*

For other definitions, see Words and Phrases. vol. 7, pp. 6665-6666.]

Transferred from Superior Court, Coos County; Sawyer, Judge.

Petition by the White Mountain Fur Company against the Town of Whitefield, for abatement of a tax on plaintiff's fox pack. Case transferred to Supreme Court on agreed statement of facts without a ruling. Remanded, and case discharged.

The plaintiff is the owner of a pack of foxes which it is keeping in "expectation that they will increase, and that as they reach maturity they may be killed and their pelts sold for fur." The plaintiff also intends to "buy and sell live foxes for breeding purposes, in such quantities and at times as may seem most advantageous to it." The tax which the plaintiff asks to have abated was assessed on these foxes for the year 1913. Drew, Shurtleff, Morris & Oakes, of Lancaster, for plaintiff. Edgar M. Bowker, of Whitefield,

for defendant.

that that term is to be given its limited or ordinary meaning; that is, that by it is intended only personal property employed by merchants, etc., in their trade or business. As there is nothing to rebut this presumption, it must be held that the only property, in addition to the classes of personal property enumerated in this subdivision, liable to be taxed as stock in trade is that employed by merchants, shopkeepers, mechanics, and tradesmen in their trade or business. Therefore, if it is conceded that these foxes are stock in trade, it will still be necessary to consider whether the plaintiff was a merchant, shopkeeper, mechanic, or tradesman on April 1, 1913, in order to determine the validity of this tax.

[1] No one contends that the plaintiff was a mechanic, within the meaning of the statute.

Was it a tradesman at the time the tax was

assessed? When that word is given its most common meaning, it is synonymous with shopkeeper (10 Cent. Dict. 6416, Tradesman 1); but it is frequently used in the sense of a skilled workman, as, for example, a blacksmith, a carpenter, or a tanner, and the history of the legislation tends very strongly to the conclusion that that is the sense in which it is used in this subdivision. 1 Prov. Laws (Batch. Ed.) p. 26; Laws (Ed. 1797) p. 203; Laws (Ed. 1805) p. 219; Laws (Ed. 1815) p. 262; Laws (Ed. 1830) p. 555, § 8; R. S. c. 39, § 3, cl. 4; C. S. c. 41, § 3, cl. 5; G. S. c. 49, § 5, cl. 6; G. L. c. 53, § 6, cl. 6; P. S. c. 55, § 7, cl. 6. In short, the history of this legislation tends to the conclusion that by tradesman is intended a mechanic engaged in business for himself. Whatever the plaintiff's business may have been on April 1, 1913, it is clear that it was not exercising a trade; that is, that it was neither a mechanic nor a tradesman at that time.

YOUNG, J. The defendants concede that foxes are not taxable as such, but contend that these foxes were taxable as stock in trade, under the provisions of subdivision 6 of section 7, c. 55, Public Statutes. Stock is broad enough to include all useful animals (9 Cent. 'Dict. 5955, Stock 22); that is, to include the plaintiff's foxes, whether kept for [2] Was it a merchant or shopkeeper? By sale or for breeding purposes. But, while a merchant, as that term is ordinarily used, all stock is in a sense stock in trade, that is intended a person whose business or occuterm is usually applied to the stock of mer-pation is buying and selling commodities. Alchants and tradesmen. 9 Cent. Dict. 5956. though every merchant buys and sells comConsequently, if the language the Legislature modities, the converse of this proposition is used is to be given its ordinary meaning, that not true, for but very few of those who buy is the sense in which "stock in trade" is used and sell commodities are merchants. Every in this subdivision. The context tends to the producer buys and sells commodities, but same conclusion, for after providing that producers are not merchants, within the ordi"stock in trade, whether of merchants, shop- nary meaning of that term. On the one keepers, mechanics, or tradesmen, employed hand, they buy commodities to use in their in their trade or business," is liable to be business, while merchants buy them to sell taxed, it goes on to say that, "for purposes again. On the other hand, they produce, of taxation, raw materials and manufactures while merchants buy, the commodities they of any manufactory, wood, manu- sell. In a word, they produce commodities, factured or otherwise, fishing ves- and merchants deal in them. What is true sels, or other vessels, of a merchant is true of a shopkeeper, for shall be deemed stock in trade." The fact whether a person who buys and sells comthat this subdivision says that certain classes modities as a business is one or the other of personal property, which are stock in depends on the extent, not on the character, trade, when that term is used to include all of his business. If his business is large, he property employed in any trade or business, is a merchant; if small, he is a shopkeeper. are to be deemed stock in trade for pur- 6 Cent. Dict. 3713, Merchant. poses of taxation tends to the conclusion person who buys and sells commodities, not

*

In short, a

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

(77 N. H. 319)

O'DOWD v. ELLIOTT et al.

ough. June 2, 1914.)

CONTRACTS (§ 74*)-BENEFIT OF THIRD PER

SON-CONSIDERATION-CONDITION.

Defendants contracted to become partners in a business with O. and another in consideration of defendants' agreement to pay plaintiff what O. owed him, the latter agreeing to continue in the business and manage the same. Plaintiff assented to the arrangement for the payment of the debt and discharged O. from lialiability at defendants' request was a sufficient bility. Held, that plaintiff's release of O. from consideration for their promise to pay O.'s debt for which they were liable, though O. did not perform his promise to continue in the business and leased O. from liability but for such promise. manage the same, and plaintiff would not have re

[Ed. Note.-For other cases, see Contracts, Cent. Dig. §§ 331-343; Dec. Dig. § 74.*]

Exceptions from Superior Court, Hillsborough County; Peaslee, Judge.

riet B. Elliott and another to recover on deAssumpsit by Hugh D. O'Dowd against Harfendants' promise to pay plaintiff a sum of money owed him by one Olsen and another. A verdict was returned in favor of the plaintiff, and the case was transferred on defendants' exception thereto. Overruled.

occasionally but as a business, is either a merchant or a shopkeeper. 27 Cyc. 479. [3] Therefore, the test to determine whether (Supreme Court of New Hampshire. Hillsborthe plaintiff was a merchant or shopkeeper on April 1, 1913, is not to inquire how it got its foxes, but why it got them. If its business at that time was buying and selling foxes, it was a merchant or shopkeeper, within this provision of the statute. If, however, it was not dealing in foxes, but keeping them as farmers keep sheep, it was not a merchant or shopkeeper, notwithstanding it bought its foxes intending to sell them and their increase, either for breeding purposes or for their pelts, as might "seem most advaniageous to it." If, however, it bought them to sell again, or, rather, if its business is dealing in foxes, the fact that it breeds them does not change the character of its business, for in that case breeding them is merely incidental to dealing in them. The question is: How does the plaintiff expect to make its profit, by buying and selling foxes, or by raising foxes and selling them? In fact, the test to determine the validity of this tax is the same in principle that would be applied if the property had been hay, or, for, that matter, almost any tangible personal property, as, for example, books or cotton cloth. The hay a dealer buys to sell again is taxable under this subdivision, but the hay he buys to feed his teams is exempt from taxation. In short, the test to determine the validity of a tax on either hay or books, in so far, at least, as this subdivision is concerned, is to inquire as to the character of the owner's business. If he is a dealer in them and carrying them in stock, they are taxable. If, however, he bought them, not to sell, but for use in his business, they are not taxable as the stock in trade of a merchant, etc., employed in his trade or business. The reserved case is as capable of the construction that the plaintiff bought its foxes for breeding purposes as that its business is dealing in foxes. Therefore, if the parties do not agree as to what the plaintiff's business was at the time this tax was assessed, that fact must be found before any decree can be made in this case.

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It will not be necessary at this time to consider whether a person who steals one of the plaintiff's foxes is guilty of larceny, for, even if he cannot be convicted of that offense, the plaintiff can recover either the fox or its value from the thief. In other

The Olsens admitted the defendants as partners in business in consideration of their agreement to pay the plaintiff what the Olsens owed him. The Olsens agreed to continue in the business and manage the same, but subsequently withdrew. The plaintiff assented to the arrangement for the payment of his debt and discharged done so but for their promise to continue as the Olsens from liability, but would not have managers of the business.

David W. Perkins, of Manchester, for plaintiff. James A. Broderick, of Manchester, for defendants.

YOUNG, J. The fact that the plaintiff would not have released the Olsens from liability but for their promise to continue as managers of the business is immaterial in so far as the defendants' liability is concerned. The plaintiff released the Olsens from liability at the defendants' request, and that is a sufficient consideration for their promise to pay the plaintiff what the Olsens owed him. Cutting v. Whittemore, 72 N. H. 107, 108, 54 Atl. 1098; Head v. Richardson, 16 N. H. 454, 456. Exception overruled.

PEASLEE, J., did not sit. The others con

curred.

(77 N. H. 347) BAKER et al. v. CITY OF NASHUA. POLLARD et al. v. SAME.

borough. July 17, 1914.)

Hills

OFFICERS-APPOINTMENT - COMPENSATION
FOR SERVICES.

words, these foxes are property; and no rea- (Supreme Court of New Hampshire. son is apparent, and none has been suggested, why the Legislature could not include them in the list of personal property liable to be 1. MUNICIPAL CORPORATIONS (§ 186*)—POLICE taxed. Whether it has so included them depends on the character of the plaintiff's business on April 1, 1913; in other words, on whether its business was breeding foxes or dealing in them. Case discharged.

PLUMMER, J., was absent. The others concurred.

Where police commissioners of the city of Nashua, acting in good faith, appointed certain the duties of the office, they were officers de persons as police officers and they performed all jure and entitled to compensation.

[Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. §§ 510-517; Dec. Dig. $186.*1

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

2. OFFICERS (§ 95*)-OFFICERS DE JURE-PER- | takes nothing by its first and second exFORMANCE OF SERVICE-COMPENSATION.

ceptions.

The fact that a de jure officer has not per[1, 2] 2. This is also true of its third exformed the duties of his office, because they have been performed by a de facto officer, does not ception, in so far as the right of the plaindeprive him of the right to recover his salary. tiffs to recover is a question of fact. Since [Ed. Note. For other cases, see Officers, the commission acted in good faith in apCent. Dig. §§ 134, 139; Dec. Dig. § 95.*] pointing the plaintiffs in the first action, they 3. MUNICIPAL CORPORATIONS (§ 176*)-POLICE are entitled, in any permissible view of the DEPARTMENT-APPROPRIATIONS EXPENDITURES BY POLICE COMMISSIONER-STATUTES law, to recover compensation as fixed by the -REPEAL. commission (Cousins v. Manchester, 67 N. H. Laws 1913, c. 118, creating the police com- 229, 38 Atl. 724); for they are not only offimission for the city of Nashua and certain other cities, provides (section 4) that it shall be cers de jure, but have performed all the the duty of the commission to appoint such duties of the office. Although the plaintiffs police officers as they may in their judgment in the second action are officers de jure, deem necessary, and to fix their compensation, they have not performed any of the duties of and section 8 repeals so much of Laws 1891, c. 208, 88, the laws and ordinances of the city, the office. The question therefore, in so far and city charter, as are inconsistent with the as they are concerned, is whether that fact provisions of chapter 148. Held that, since the is an answer to the action. Although some commission cannot determine the number of men to be employed to police the city and fix their courts hold that a de jure officer cannot recompensation, if the city council has power to cover under such circumstances when the limit the expenditure for such purpose, so much salary has been paid to a de facto officer of the pre-existing law as was inconsistent with without notice of the former claim, most the right of the commission to decide such ques-courts hold that the simple fact that an officer tions for itself was repealed, and the commission had power to pledge the city's credit to the extent necessary to pay such number of police officers as in its discretion were necessary to be employed to properly police the city, and it was the duty of the council to provide the amount necessary for that purpose.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 427-440; Dec. Dig. § 176.*]

de jure has not performed the duties of his
office is no defense to an action to recover
the salary attached to the office. Andrews v.
Portland, 79 Me. 484, 10 Atl. 458, 10 Am. St.
Rep. 280; State v. Carr, 129 Ind. 44, 28 N.
E. 88, 13 L. R. A. 177, 28 Am. St. Rep. 163.
This rule obtains in this state.
Towne, 67 N. H. 113, 29 Atl. 637.

Stone v. The ques

Exceptions from Superior Court, Hills- tion as to the rights of de facto officers, disborough County.

Actions by George E. Baker and others and by Harvey Pollard and others against the City of Nashua. Rulings were made in favor of plaintiffs in each case, and the city brings exceptions. Overruled.

After the rescripts in Pollard v. Gregg, 77 N. H. 190, 90 Atl. 176, and Baker v. Barry, 77 N. H. 198, 90 Atl. 180, were transmitted to the superior court, the plaintiffs amended both actions by making the city of Nashua a party defendant and by filing declarations in assumpsit. Upon a hearing, the court found (1) that the police commissioners acted in good faith, and (2) were not guilty of a breach of trust, and (3) that the plaintiffs in both actions were entitled to recover from the city, and (4) ruled that the commission had power to pledge the credit of the city over and above the amount appropriated by the city councils for the use of the police department. To these findings and rulings the city of Nashua excepted.

Wason & Moran, George F. Jackson, and Doyle & Lucier, all of Nashua, and Remick & Jackson, of Concord, for plaintiffs. Henry A. Burque, of Nashua, for City of Nashua.

PER CURIAM. 1. There evidence from which it could be found that the police commissioners acted in good faith, both in removing the old officers and in appointing the new ones, and that they were not guilty of a breach of trust. The city therefore

cussed in the defendants' brief, is not before the court. Peterson v. Benson, 38 Utah, 286, 112 Pac. 801, Ann. Cas. 1913B, 640, 32 L. R. A. (N. S.) 949, note.

[3] 3. Chapter 148, Laws 1913, creates the police commission and prescribes its duties. Section 4 provides:

sioners to appoint such police officers **
"It shall be the duties of said police commis-
as they may in their judgment deem necessary,
and to fix their compensation."

Section 8 repeals so much of section 8, c. 208, Laws 1891, the Public Statutes, the laws and ordinances of the city, and the city charter, as are inconsistent with the provisions of chapter 148.

If the language of section 4 is to be given its ordinary meaning, it is the duty of the police commission to appoint as many officers as it thinks are necessary to properly police the city and to determine the amount they shall be paid. The only limitation on its power, in so far as these matters are concerned, is its honest judgment as to what the public welfare requires. Whether section 4, c. 148, Laws 1913, repeals so much of section 8, c. 208, Laws 1891, as makes it the duty of the city councils to determine the amount of money the police commission may use depends, therefore, on whether that provision is inconsistent with the provisions of section 4 which make it the duty of the commission to determine the number of officers necessary to police the city and to fix their compensation.

If the city councils can limit the amount of

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

[counties, and sublet the highway work to plaintiffs, and then became insolvent, plaintiffs were mere creditors of the bridge company and not of the counties, and could not apply the doctrine of subrogation, so as to enforce a liability against the fund in the hands of the counties remaining to the credit of the bridge latter's receiver for distribution among all the company, which instead was payable to the creditors.

[Ed. Note.-For other cases, see Counties, Cent. Dig. § 198; Dec. Dig. § 130.*1

money the commission may use, it is apparent that it cannot determine the number of men which should be employed to police the city and fix their compensation. In other words, it is obvious that, if the city councils can, the police commission cannot determine the amount of money which should be used to police the city. Therefore, so much of section 8, c. 208, Laws 1891, as is inconsistent with the right of the commission to decide these questions for itself is repealed. In short, the commission is the city in so far as determining the number of men that should be employed and fixing their compen-trading as the Holt Construction Company, sation is concerned; its acts, in so far as these matters are concerned, are the acts of the city, and its mistakes, if it makes any, are the mistakes of the city. Section 4, C. 148, Laws 1913, therefore gives the commission the right to pledge the credit of the city to the extent necessary to pay the men it thinks should be employed to properly police the city, and by necessary implication makes it the duty of the city councils to provide the money necessary for that purpose, as well as to pay all the other necessary expenses of the police department.

Exceptions overruled.

(124 Md. 66)

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HOLT et al. v. STATE ROADS COMMIS-
SION et al. (No. 53.)

(Court of Appeals of Maryland. June 26,
1914.)

1. CORPORATIONS ($ 544*)-INSOLVENCY-ADMINISTRATION OF ESTATE-TRUST FUND.

When a corporation becomes insolvent, it is so far civilly dead that its property may be administered in equity as a trust fund for the benefit of its stockholders and creditors, of whatever state they may be residents.

[Ed. Note.-For other cases, see Corporations, Cent. Dig. §§ 2162-2169; Dec. Dig. § 544.*] 2. COUNTIES (§ 129*)-IMPROVEMENTS-HIGHWAYS BRIDGES SUBCONTRACTORS-SURETIES.

Appeal from Circuit Court No. 2 of Baltimore City; James M. Ambler, Judge. Action by Thomas S. Holt and another, against the State Roads Commission and others. From an order sustaining demurrers of the Title Guaranty & Surety Company and others, and dismissing the bill, plaintiffs appeal. Affirmed.

Argued before BOYD, C. J., and BRISCOE, BURKE, THOMAS, URNER, STOCKBRIDGE, and CONSTABLE, JJ.

Frank Gosnell, of Baltimore (Hazelton A. Joyce, Jr., of Cambridge, and Marbury, Gosnell & Williams, of Baltimore, on the brief), for appellants. Julian W. Ridgely and Aubrey Pearre, Jr., both of Baltimore (Barton, Wilmer & Stewart and Harley & Wheltle, all of Baltimore, on the brief), for appellees.

BURKE, J. Thomas S. Holt and Clayton S. Kauffman, copartners trading under the name of the Holt Construction Company, filed their bill of complaint in circuit court No. 2 of Baltimore city against the appellees on this record.

The material facts which need be stated are these: On or about the 15th of May, 1911, the York Bridge Company, a Pennsylvania corporation, entered into a contract with the county commissioners of Caroline county and the county commissioners of Talbot county for the furnishing of all material and labor for the construction and completion, according to plans and specifications on file in the office of each of said counties, of a bridge

Where a bridge company contracted to construct a bridge and certain highways for two counties, and executed a bond conditioned that if the bridge company should comply with the contract and should indemnify and save harm-known as Dover Bridge, and also a section of less the commissioners of the contracting coun- highway for a distance of about .83 miles ties and the state against all costs, expenses, upon and along the Dover Bridge road in damages, or loss to which the commissioners Caroline county. and state might be subjected by reason of any wrongdoing, misconduct, want of skill or care, negligence, or default on the part of the bridge company, its agents or employés in and about the execution and performance of the contract in the matter of constructing the highway, then the obligation should be void, otherwise to remain in full force and virtue, the surety was not liable for the bridge company's failure to perform its contract, by which it sublet the construction of the highways to a subcontractor, due to the bridge company's subsequent insolvency.

[Ed. Note.-For other cases, other cases, see Counties, Cent. Dig. § 197; Dec. Dig. § 129.*]

3. COUNTIES (§ 130*)-IMPROVEMENTS-BRIDGES AND HIGHWAYS-CONSTRUCTION - SUBCONTRACT-RIGHTS OF SUBCONTRACTOR. Where a bridge company contracted to construct a bridge and certain highways for two

Under the contract of the York Bridge Company with the county commissioners of the two named counties, it was to be paid the following prices for the road construction: For borrow and fill, the price of 50 cents per cubic yard. For all class B oyster shell surfacing, 75 cents per square yard. For riprapping, $1.25 per square yard.

The contract further provided that the contractor should give his personal attention to the performance of the contract, and should keep the same under his control. The Subletting of portions of the work to be done under the contract might be done only upon the written consent of the county commissioners and approved by the engineer, and

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

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that the contractor should not, either legally the construction of the section of highway or equitably, assign any of the moneys pay-mentioned along the Dover road. The porable under the contract, or his claim there- tions of that contract material to this case to, unless by and with the like consent of are: the county commissioners in writing. Νο liability should attach to the county commissioners or to the counties, under the terms of the contract, until the engineer had approved the work and certified in writing that the contractor had completed the work according to the requirements of the contract.

It was further provided that the contractor should not be entitled to demand or receive payment for any portion of the work or material, except in the manner set forth in the contract and specifications, and until the engineer had given his certificate to that effect, whereupon said counties, by and through the county commissioners, will, within 30 days after such completion and delivery of said certificate, pay, or cause to be paid, the said contractor, in cash, the whole amount of money then due the said contractor, under the contract, excepting such sum or sums as may be lawfully retained under any of the provisions of the contract hereinbefore set forth.

The Title Guaranty & Surety Company, one of the appellees, became surety upon the bond of the York Bridge Company for the completion of the work according to the terms of the contract. This bond was given under the Acts of 1910, c. 217, § 39 (Code 1912, art. 91, § 72). The condition of the bond was that if the principal, the York Bridge Company, shall in all respects comply with the terms and conditions of said contract, and his obligations thereunder, including the specifications therein referred to and made part thereof and such alterations as may be made in said specifications as therein provided for, and shall indemnify and save harmless the said county commissioners of Caroline and Talbot counties and the said state of Maryland against or from all costs, expense, damages, injury, or loss to which the said county commissioners of Caroline and Talbot counties and the said state of Maryland may be subjected, by reason of any wrongdoing, misconduct, want of care or skill, negligence, or default, upon the part of said principal, his agents or employés in or about the execution or performance of said contract, including said specifications, and such alterations as may be made in said specifications as therein provided for, and shall save and keep harmless the said county commissioners of Caroline and Talbot counties and the said state of Maryland against and from all losses to them or either of them, from any cause whatever, including patent infringements, in the matter of constructing said section of state-aided highway, then this obligation to be void, and otherwise to be and remain in full force and virtue in law. About a year after the contract had been awarded to the York Bridge Company, it entered into a contract with the plaintiffs for

"Whereas, on the 15th day of May, A. D. 1911, the York Bridge Company entered into missioners of Caroline and Talbot counties, a contract in writing with the county comMaryland, for the furnishing of all material, etc., and to construct and complete, as per plans and specifications on file in the offices of the county commissioners of Caroline and Talbot counties, bridge known as Dover Bridge and section of state highway for a distance of about 0.83 miles upon and along Dover Bridge road, in Caroline and Talbot counties, Maryland, which contract is known in the business of the York Bridge Company as contract number eleven hundred and ninety-four (1194): Now, therefore, for and in consideration of the sum agrees to furnish all labor, tools, appliances hereinafter named, the construction company and every other thing necessary and pertinent to the construction of the said section of state highway upon and along Dover road. It is understood and agreed that the construction company is to assume all the obligations and to do everything necessary to the construction and completion of said road as called for by the plans and specifications which are on file in the and Talbot counties, and to be governed by the offices of the county commissioners of Caroline said plans and specifications the same as the York Bridge Company itself has agreed to be governed. For and in consideration of the work to be performed, the bridge company agrees to pay the construction company, upon approval and acceptance of said road by the county commissioners as follows: For borrow and fill, the price of fifty cents ($.50) per cubic yard. For all class B oyster shell surfacing, eighty cents ($.80) per square yard. For riprapping, the price of one dollar and twenty-five cents ($1.25) per square yard."

It will be noted that the only change in the prices for the work was that the plaintiffs were to receive 80 cents for oyster shell surfacing instead of 75 cents, as provided in the contract of the bridge company with the county commissioners.

The bill alleged that the plaintiffs "completed their said work under said contract with the York Bridge Company, a body corporate, and there is now due and owing your orators under said contract the sum of four thousand five hundred dollars ($4,500) or more," and that said sum is due the plaintiffs "for labor and materials furnished by them to said contractor, the York Bridge Company"; that the state roads commission and the county commissioners have in hand and ready for payment on said contract the sum of approximately $5,000. It is further alleged that the plaintiffs are the only persons, so far as they know, to whom the York Bridge Company is indebted for labor and materials; that the said bridge company is a nonresident of this state, and is insolvent and unable to pay its debts, and that a receiver had been appointed for said corporation in the state of Pennsylvania by a court of competent jurisdiction. It is then alleged that the Title Guaranty & Trust Company is liable for the the indebtedness of the York Bridge Company to the plaintiffs, and that it should pay the same and be subrogated to

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