
    No. 29,382.
    A. F. Roberts, Appellee, v. The Board of County Commissioners of the County of Nemaha and The State Highway Commission, Appellants.
    
    (298 Pac. 754.)
    Opinion filed May 9, 1931.
    
      Roland Boynton, of Emporia, for the state highway commission, and Harry A. Lanning, county attorney, for the appellants.
    
      James L. Haley, of Sabetha, and M. A. Bender, of Holton, for the appellee.
   The opinion of the court was delivered by

Burch, J.:

The action was one by a contractor to recover for material furnished and labor performed pursuant to a contract with the board of county commissioners to construct a state highway. Judgment was rendered for plaintiff against the county and the state highway commission, and in the event the county should pay the judgment, for the county against the state highway commission. Defendants appeal.

The errors assigned are without merit.. In particular, the stock assignment which serves as an excuse for unwarranted appeals, that there was no substantial evidence to support the judgment, is trifling.

One item for which plaintiff recovered was material furnished which was rejected, as plaintiff claimed, in bad faith. As bearing on the question of bad faith, the result of a laboratory test of the material, made at a laboratory other than the testing laboratory at Manhattan, was properly received in evidence. The county was liable for material furnished pursuant to the contract, which was wrongfully rejected. Judgment was properly rendered against the county with whom the contract was made, and against the state highway commission because of liability assumed pursuant to R. S. Supp. 68-418.

The judgment is affirmed.  