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3. TAXATION ($ 72*)–PROPERTY SUBJECT TO , that that term is to be given its limited or Tax-FoXES—"STOCK IN TRADE” – “MER- ordinary meaning; that is, that by it is inCHANT.'

Pub. St. 1901, c. 55, § 7, cl. 6, provides for tended only personal property employed by the taxation of "stock' in trade, whether of merchants, etc., in their trade or business. merchants, shopkeepers, mechanics, or trades- As there is nothing to rebut this presumption, men, employed in their trade or business," and it must be held that the only property, in adthat, for the purpose of taxation, raw materials, manufactures, and vessels shall be deemed dition to the classes of personal property "stock in trade." Held that, while the word enumerated in this subdivision, liable to be "stock" includes all useful anímals, including a taxed as stock in trade is that employed by fox pack, whether kept for sale or for breeding

merchants, shopkeepers, mechanics, and purposes, the word, as used in such act, applied only to property employed by merchants in their tradesmen in their trade or business. Therebusiness, and since one raising foxes and selling fore, if it is conceded that these foxes are them is not a "merchant," such foxes would only stock in trade, it will still be necessary to be taxable to one buying and selling them as a consider whether the plaintiff was a merchant. [Ed. Note.-For other cases, see Taxation,

chant, shopkeeper, mechanic, or tradesman Cent. Dig. § 157; Dec. Dig. § 72.*

on April 1, 1913, in order to determine the For other definitions, see Words and Phrases, validity of this tax. vol. 7, pp. 6665–6666.]

[1] No one contends that the plaintiff was a Transferred from Superior Court, Coos mechanic, within the meaning of the statute. County ; Sawyer, Judge.

Was it a tradesman at the time the tax was Petition by the White Mountain Fur Company assessed? When that word is given its most against the Town of Whitefield, for abatement common meaning, it is synonymous with of a tax on plaintiff's fox pack.' Case transfer- shopkeeper (10 Cent. Dict. 6416, Tradesman red to Supreme Court on agreed statement of 1); but it is frequently used in the sense of facts without a ruling. Remanded, and case dis- a skilled workman, as, for example, a blackcharged.

The plaintiff is the owner of a pack of foxes Smith, a carpenter, or a tanner, and the hiswhich it is keeping in “expectation that they will tory of the legislation tends very strongly increase, and that as they reach maturity they to the conclusion that that is the sense in may be killed and their pelts sold for fur.” The which it is used in this subdivision. 1 Prov. plaintiff also intends to "buy and sell live foxes for breeding purposes, in such quantities and at Laws (Batch. Ed.) p. 26; Laws (Ed. 1797) p. times as may seem most advantageous to it." 203; Laws (Ed. 1805) p. 219; Laws (Ed. The tax which the plaintiff asks to have abated 1815) p. 262; Laws (Ed. 1830) p. 555, § 8; was assessed on these foxes for the year 1913.

R, S. c. 39, § 3, cl. 4; C. S. c. 41, § 3, cl. Drew, Shurtleff, Morris & Oakes, of Lancaster, 5; G. S. c. 49, § 5, cl. 6; G. L. C. 53, § 6, cl. for plaintiff. Edgar M. Bowker, of Whitefield, 6; P. S. c. 55, § 7, cl. 6. for defendant.

In short, the

history of this legislation tends to the conYOUNG, J. The defendants concede that clusion that by tradesman is intended a mefoxes are not taxable as such, but contend chanic engaged in business for himself. that these foxes were taxable as stock in Whatever the plaintiff's business may have trade, under the provisions of subdivision 6 been on April 1, 1913, it is clear that it was of section 7, c. 55, Public Statutes. Stock not exercising a trade; that is, that it was is broad enough to include all useful animals neither a mechanic nor a tradesman at that (9 Cent. 'Dict. 5955, Stock 22); that is, to in-time. clude 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. In short, a poses of taxation tends to the conclusion person who buys and sells commodities, not *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

occasionally but as a business, is either a

(77 N. H. 319) merchant or a shopkeeper. 27 Cyc. 479.

O'DOWD 7. ELLIOTT et al. [3] Therefore, the test to determine whether (Supreme Court of New Hampshire. Hillsborthe plaintiff was a merchant or shopkeeper

ough. June 2, 1914.) on April 1, 1913, is not to inquire how it got its foxes, but why it got them. If its CONTRACTS ($_74*)—BENEFIT OF THIRD PER

SON-CONSIDERATION-CONDITION. business at that time was buying and selling Defendants contracted to become partners foxes, it was a merchant or shopkeeper, with in a business with O. and another in considerain this provision of the statute. If, however, what 0. owed him, the latter agreeing to contin

tion of defendants' agreement to pay plaintiff it was not dealing in foxes, but keeping them ue in the business and manage the same. Plainas farmers keep sheep, it was not a merchant tiff assented to the arrangement for the payor shopkeeper, notwithstanding it bought itsment of the debt and discharged 0. from liafoxes intending to sell them and their in- liability at defendants' request was a sufficient

bility. Held, that plaintiff's release of 0. from crease, either for breeding purposes or for consideration for their promise to pay O.'s debt their pelts, as might "seem most advan- for which they were liable, though O. did not periageous to it.” If, however, it bought them form his promise to continue in the business and to sell again, or, rather, if its business is manage the same, and plaintiff would not have reto sell again, or, rather, if its business is leased o. from liability but for such promise. dealing in foxes, the fact that it breeds them

[Ed. Note.-For other cases, see Contracts, does not change the character of its busi- Cent. Dig. $$ 331-343; Dec. Dig. 8 74.*] ness, for in that case breeding them is merely

Exceptions from Superior Court, Hillsborincidental to dealing in them. The question

ough County; Peaslee, Judge. is: How does the plaintiff expect to make its profit, by buying and selling foxes, or by riet B. Elliott and another to recover on de

Assumpsit by Hugh D. O'Dowd against Harraising foxes and selling them? In fact, the fendants' promise to pay .plaintiff a sum of montest to determine the validity of this tax is ey owed him by one Olsen and another. A verthe same in principle that would be applied dict was returned in favor of the plaintiff, and

the case was transferred on defendants' excepif the property had been hay, or, for, that

tion thereto. Overruled. matter, almost any tangible personal prop The Olsens admitted the defendants as partners erty, as, for example, books or cotton cloth. in business in consideration of their agreement The hay a dealer buys to sell again is tax- to pay the plaintiff what the Olsens owed him.

The Olsens agreed to continue in the business able under this subdivision, but the hay he and manage the same, but subsequently withbuys to feed his teams is exempt from tax. drew. The plaintiff assented to the arrangeation. In short, the test to determine the ment for the payment of his debt and discharged validity of a tax on either hay or books, in done so but for their promise to continue as

the Olsens from liability, but would not have so far, at least, as this subdivision is con- managers of the business. cerned, is to inquire as to the character of

David W. Perkins, of Manchester, for plainthe owner's business. If he is a dealer in tiff. James A. Broderick, of Manchester, for them and carrying them in stock, they are defendants. taxable. If, however, he bought them, not

YOUNG, J. The fact that the plaintiff to sell, but for use in his business, they are would not have released the Olsens from lianot taxable as the stock in trade of a mer- bility but for their promise to continue as chant, etc., employed in his trade or busi- managers of the business is immaterial in so

The reserved case is as capable of the far as the defendants' liability is concerned. construction that the plaintiff bought its fox- The plaintiff released the Olsens from liabiles for breeding purposes as that its business ity at the defendants' request, and that is is dealing in foxes. Therefore, if the parties a sufficient consideration for their promise do not agree as to what the plaintiff's busi- to pay the plaintiff what the Olsens owed ness was at the time this tax was assessed, him. Cutting v. Whittemore, 72 N. H. 107, that fact must be found before any decree 108, 54 Atl. 1098; Head v. Richardson, 16 can be made in this case.

N. H. 454, 456. Exception overruled. It will not be necessary at this time to consider whether a person who steals one of

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

curred. the plaintiff's foxes is guilty of larceny, for, even if he cannot be convicted of that of.

(77 N. H. 347) fense, the plaintiff can recover either the BAKER et al. v. CITY OF NASHUA. fox or its value from the thief. In other

POLLARD et al. V. SAME. words, these foxes are property; and no rea- | (Supreme Court of New Hampshire.

Hillsson is apparent, and none has been suggested,

borough. July 17, 1914.) why the Legislature could not include them in the list of personal property liable to be 1. MUNICIPAL CORPORATIONS (186*)–POLICE

OFFICERS-APPOINTMENT - COMPENSATION taxed. Whether it has so included them de FOR SERVICES. pends on the character of the plaintiff's busi Where police commissioners of the city of ness on April 1, 1913; in other words, on Nashua, acting in good faith, appointed certain

persons as police officers and they performed all whether its business was breeding foxes or the duties of the office, they were officers de dealing in them. Case discharged.

jure and entitled to compensation. PLUMMER, J., was absent. The others

[Ed. Note. For other cases, see Municipal

Corporations, Cent. Dig. $8 510-517; Dec. Dig. concurred.

$ 186.*]

ness.

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

2. OFFICERS (8 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. 88 134, 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 EXPENDI-
TURES 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, &. 8, 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 questions for itself was repealed, and the commis courts hold that the simple fact that an officer sion had power to pledge the city's credit to the de jure has not performed the duties of his extent necessary to pay such number of police office is no defense to an action to recover

in its be employed to properly police the city, and it the salary attached to the office. Andrews v. was the duty of the council to provide the Portland, 79 Me. 484, 10 Atl. 458, 10 Am. St. amount necessary for that purpose.

Rep. 280; State v. Carr, 129 Ind. 44, 28 N. [Ed. Note.--For other cases, see Municipal E. 88, 13 L. R. A. 177, 28 Am. St. Rep. 163. Corporations, Cent. Dig. 88 427-440; Dec. Dig. This rule obtains in this state. Stone v. $ 176.*]

Towne, 67 N. H. 113, 29 Atl. 637. The quesExceptions from Superior Court, Hills- tion as to the rights of de facto officers, disborough County.

cussed in the defendants' brief, is not be Actions by George E. Baker and others and fore the court. Peterson v. Benson, 38 Utah, by Harvey Pollard and others against the 286, 112 Pac. 801, Ann. Cas. 1913B, 640, 32 L. City of Nashua. Rulings were made in favor R. A. (N. S.) 949, note. of plaintiffs in each case, and the city brings [3] 3. Chapter 148, Laws 1913, creates the exceptions. Overruled.

police commission and prescribes its duties. After the rescripts in Pollard v. Gregg, 77 | Section 4 provides : N. H. 190, 90 Atl. 176, and Baker v. Barry, sioners to appoint such police officers

"It shall be the duties of said police commis77 N. H. 198, 90 Atl. 180, were transmitted as they may

in their judgment deem necessary, to the superior court, the plaintiffs amended and to fix their compensation.' both actions by making the city of Nashua

Section 8 repeals so much of section 8, c. a party defendant and by filing declarations 208, Laws 1891, the Public Statutes, the in assumpsit. Upon a hearing, the court laws and ordinances of the city, and the found (1) that the police commissioners acted city charter, as are inconsistent with the in good faith, and (2) were not guilty of a provisions of chapter 148. breach of trust, and (3) that the plaintiffs in

If the language of section 4 is to be given both actions were entitled to recover from its ordinary meaning, it is the duty of the the city, and (4) ruled that the commission police commission to appoint as many officers had power to pledge the credit of the city as it thinks are necessary to properly police over and above the amount appropriated by the city and to determine the amount they the city councils for the use of the police de shall be paid. The only limitation on its partment. To these findings and rulings the power, in so far as these matters are concerncity of Nashua excepted.

ed, is its honest judgment as to what the Wason & Moran, George F. Jackson, and public welfare requires. Whether section 4, Doyle & Lucier, all of Nashua, ani Remick (c. 148, Laws 1913, repeals so much of section & Jackson, of Concord, for plaintiffs. Henry | 8, c. 208, Laws 1891, as makes it the duty of A. Burque, of Nashua, for City of Nashua. the city councils to determine the amount of

money the police commission may use de PER CURIAM. 1. There

evidence pends, therefore, on whether that provision from which it could be found that the policy is inconsistent with the provisions of section commissioners acted in good faith, both in 4 which make it the duty of the commission to removing the old officers and in appointing determine the number of officers necessary to the new ones, and that they were not guilty police the city and to fix their compensation. of a breach of trust. The city therefore 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'rIndexes

money the commission may use, it is appar-counties, and sublet the highway work to plainent that it cannot determine the number of tiffs, and then became insolvent, plaintiffs were men which should be employed to police the mere creditors of the bridge company and not

the city and fix their compensation. In other doctrine of subrogation, so as to enforce a liawords, it is obvious that, if the city councils bility against the fund in the hands of the can, the police commission cannot determine counties remaining to the credit of the bridge the amount of money which should be used latter's receiver for distribution among all the

company, which instead was payable to the to police the city. Therefore, so much of creditors. section 8, c. 208, Laws 1891, as is inconsist [Ed. Note. For other cases, see Counties, ent with the right of the commission to de- Cent. Dig. § 198; Dec. Dig. & '130.*] cide these questions for itself is repealed.

Appeal from Circuit Court No. 2 of BaltiIn short, the commission is the city in so more City; James M. Ambler, Judge. far as determining the number of men that

Action by Thomas S. Holt and another, should be employed and fixing their compen- trading as the Holt Construction Company, sation is concerned; its acts, in so far as against the State Roads Commission and these matters are concerned, are the acts of others. From an order sustaining demurrers the city, and its mistakes, if it makes any, of the Title Guaranty & Surety Company and are the mistakes of the city. Section 4, c. others, and dismissing the bill, plaintiffs ap148, Laws 1913, therefore gives the commis

peal. Affirmed. sion the right to pledge the credit of the city

Argued before BOYD, C. J., and BRISto the extent necessary to pay the men it COE, BURKE, THOMAS, URNER, STOCKthinks should be employed to properly police BRIDGE, and CONSTABLE, JJ. the city, and by necessary implication makes it the duty of the city councils to provide the

Frank Gosnell, of Baltimore (Hazelton A. money necessary for that purpose, as well Joyce, Jr., of Cambridge, and Marbury, Gosas to pay all the other necessary expenses of nell & Williams, of Baltimore, on the brief), the police department.

for appellants. Julian W. Ridgely and AuExceptions overruled.

brey Pearre, Jr., both of Baltimore (Barton,

Wilmer & Stewart and Harley & Wheltle, all (124 Md. 66)

of Baltimore, on the brief), for appellees. HOLT et al. v. STATE ROADS COMMISSION et al. (No. 53.)

BURKE, J. Thomas S. Holt and Clayton (Court of Appeals of Maryland. June 26, S. Kauffman, copartners trading under the 1914.)

name of the Holt Construction Company, 1. CORPORATIONS (S 544*)-INSOLVENCY-AD- filed their bill of complaint in circuit court MINISTRATION OF ESTATE-TRUST FUND.

No. 2 of Baltimore city against the appellees When a corporation becomes insolvent, it

on this record. is so far civilly dead that its property may be administered in equity as a trust fund for the

The material facts which need be stated are benefit of its stockholders and creditors, of these : On or about the 15th of May, 1911, whatever state they may be residents.

the York Bridge Company, a Pennsylvania [Ed. Note.-For other cases, see Corporations, corporation, entered into a contract with the Cent. Dig. 88 2162-2169; Dec. Dig. § 544.*1 county commissioners of Caroline county and 2. COUNTIES (8 129*)—IMPROVEMENTS-HIGH- the county commissioners of Talbot county WAYS BRIDGES-SUBCONTRACTORS-SURE

for the furnishing of all material and labor TIES.

Where a bridge company contracted to con- for the construction and completion, accordstruct a bridge and certain highways for two ing to plans and specifications on file in the counties, and executed a bond conditioned that office of each of said counties, of a bridge 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,

Under the contract of the York Bridge negligence, or default on the part of the bridge Company with the county commissioners of company, its agents or employés in and about the two named counties, it was to be paid the execution and performance of the contract the following prices for the road construcin the matter of constructing the highway, then the obligation should be void, otherwise to re

tion: For borrow and fill, the price of 50 main in full force and virtue, the surety was cents per cubic yard. For all class B oyster not liable for the bridge company's failure to shell surfacing, 75 cents per square yard. perform its contract, by which it sublet the For riprapping, $1.25 per square yard. construction of the highways to a subcontractor, due to the bridge company's subsequent

The contract further provided that the insolvency.

contractor should give his personal attention [Ed._Note. For other cases, see Counties, to the performance of the contract, and Cent. Dig. § 197; Dec. Dig. $ 129.*]

should keep the same under his control. The 3. COUNTIES ($ 130*)—IMPROVEMENTS-BRIDG- subletting of portions of the work to be done

ES AND HIGHWAYS — CONSTRUCTION – SUB- under the contract might be done only upon CONTRACT_RIGHTS OF SUBCONTRACTOR.

Where a bridge company contracted to con- the written consent of the county commisstruct a bridge and certain highways for two sioners 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

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. No "Whereas, on the 15th day of May, A. D. liability should attach to the county commis- 1911, the York Bridge Company entered into sioners or to the counties, under the terms of missioners of Caroline and Talbot counties,

a contract in writing with the county comthe contract, until the engineer had approved Maryland, for the furnishing of all material, the work and certified in writing that the etc., and to construct and complete, as per contractor had completed the work accord- plans and specifications on file in the offices of

the county commissioners of Caroline and Taling to the requirements of the contract.

bot counties, bridge known as Dover Bridge and It was further provided that the contractor section of state highway for a distance of should not be entitled to demand or receive about 0.83 miles upon and along Dover Bridge payment for any portion of the work or ma- land, which contract is known in the business

road, in Caroline and Talbot counties, Maryterial, except in the manner set forth in the of the York Bridge Company as contract number contract and specifications, and until the eleven hundred and ninety-four (1194): Now, engineer had given his certificate to that ef- therefore, for and in consideration of the sum fect, whereupon said counties, by and through agrees to furnish' all labor, tools, appliances

hereinafter named, the construction company the county commissioners, will, within 30 and every other thing necessary and pertinent days after such completion and delivery of to the construction of the said section of state said certificate, pay, or cause to be paid, the highway upon and along Dover road. It is said contractor, in cash, the whole amount of company is to assume all the obligations and

understood and agreed that the construction money then due the said contractor, under to do everything necessary to the construction the contract, excepting such sum or sums as and completion of said road as called for by the may be lawfully retained under any of the plans and specifications which are on file in the provisions of the contract hereinbefore set and Talbot counties, and to be governed by the

offices of the county commissioners of Caroline forth.

said plans and specifications the same as the The Title Guaranty & Surety Company, York Bridge Company itself has agreed to be one of the appellees, became surety upon the governed. For and in consideration of the work bond of the York Bridge Company for the pay the construction company, upon approval

to be performed, the bridge company agrees to completion of the work according to the and acceptance of said road by the county comterms of the contract. This bond was given missioners as follows: For borrow and fill, the under the Acts of 1910, c. 217, § 39 (Code all class B oyster shell surfacing, eighty cents

price of fifty cents ($.50) per cubic yard. For 1912, art. 91, § 72). The condition of the ($.80) per square yard. For riprapping, the bond was that if the principal, the York price of one dollar and twenty-five cents ($1.25) Bridge Company, shall in all respects com- per square yard.” ply with the terms and conditions of said It will be noted that the only change in the contract, and his obligations thereunder, in- prices for the work was that the plaintiffs cluding the specifications therein referred to were to receive 80 cents for oyster shell surand made part thereof and such alterations facing instead of 75 cents, as provided in as may be made in said specifications as the contract of the bridge company with the therein provided for, and shall indemnify and county commissioners. save harmless the said county commissioners The bill alleged that the plaintiffs "comof Caroline and Talbot counties and the said pleted their said work under said contract state of Maryland against or from all costs, with the York Bridge Company, a body corexpense, damages, injury, or loss to which porate, and there is now due and owing your the said county commissioners of Caroline orators under said contract the sum of four and Talbot counties and the said state of thousand five hundred dollars ($4,500) or Maryland may be subjected, by reason of more," and that said sum is due the plainany wrongdoing, misconduct, want of care tiffs "for labor and materials furnished by or skill, negligence, or default, upon the part them to said contractor, the York Bridge of said principal, his agents or employés in Company”; that the state roads commission or about the execution or performance of and the county commissioners have in hand said contract, including said specifications, and ready for payment on said contract the and such alterations as may be made in said sum of approximately $5,000. It is further specifications as therein provided for, and alleged that the plaintiffs are the only pershall save and keep harmless the said county sons, so far as they know, to whom the York commissioners of Caroline and Talbot coun- Bridge Company is indebted for labor and ties and the said state of Maryland against materials; that the said bridge company is a and from all losses to them or either of them, nonresident of this state, and is insolvent from any cause whatever, including patent and unable to pay its debts, and that a reinfringements, in the matter of constructing ceiver had been appointed for said corporasaid section of state-aided highway, then this tion in the state of Pennsylvania by a court obligation to be void, and otherwise to be of competent jurisdiction. It is then alleged and remain in full force and virtue in law. that the Title Guaranty & Trust Company is

About a year after the contract had been liable for the indebtedness of the York awarded to the York Bridge Company, it Bridge Company to the plaintiffs, and that it entered into a contract with the plaintiffs for should pay the same and be subrogated to

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