#### C. G. KEEBLE, Trustee of P. R. ASHBY, Bankrupt, v. FIDELITY AND DEPOSIT COMPANY OF BALTIMORE et al.

(Filed 27 October, 1926.)

(For digest see Robinson Manufacturing Oo. v. R. L. Blayloclc et at, ante, 407.)

Appeal by plaintiff from Barnhill, J., at March Term, 1926, of WaKE.

*417Civil action' to recover balance alleged to be due under a road construction contract.

From a judgment in favor of tbe Fidelity and Deposit Company of Baltimore, Maryland, rendered on facts agreed, a jury trial having been waived, tbe plaintiff appeals, assigning error.

J. G. Little for ‘plaintiff.

8. Brown Shepherd for Fidelity and Deposit Go.

Stacy, C. J.

Tbe controlling facts are as follows: 1. In December, 1921, P. R. Asbby, contractor, entered into a contract witb tbe State Highway Commission of North Carolina to build a road in Wilson County, known as Project No. 291.

2. Tbe Fidelity and Deposit Company of Baltimore, Maryland (hereafter called tbe surety), became surety on tbe contract bond and thereby obligated itself, among other things, to save tbe State Highway Commission harmless from “any and all claims of persons furnishing material or performing labor in and about the construction of said roadway,” etc.

3. The actual work of construction had been completed, or practically so, but with many claims for labor and material unpaid, on 4 January, 1924, when the contractor was adjudged a bankrupt and the plaintiff herein appointed trustee in bankruptcy as provided by law.

4. On default by the contractor, the surety was compelled, under the terms of its bond, to pay. the claims of laborers and materialmen, amounting to more than $9,000.00.

5. At the time of the adjudication in bankruptcy, the State Highway Commission had in its hands, under the provisions of the construction contract, retained percentages of the contractor’s account, amounting to $8,098.92.

6. These retained percentages had been duly assigned to the surety at the time of the execution of the surety bond.

Upon these, the facts chiefly pertinent, the appeal presents the single question as to whether the aforesaid retained percentages should be paid to the trustee in bankruptcy for distribution among the general creditors of the bankrupt, or to the surety, under and by virtue of the terms of its contract and bond.

The judgment awarding the sum to the surety must be affirmed on authority of Robinson Mfg. Co. v. Blaylock et al., ante, 407.

Affirmed.