
    G. W. Sutherland, Adm’r., etc. v. Nelson and Chase & Gilbert Company
    (No. 7766)
    Submitted January 16, 1934.
    Decided January 23, 1934.
    
      
      E. W. Worrell, for plaintiff in error.
    
      Fitzpatrick, Brown & Davis and Randolph Bias, for defendant in error.
   Lite, Judge:

Tills is an action of trespass on the case in assumpsit by G. W. Sutherland, as administrator of the estate of J. J. Young, deceased, against Nelson and Chase & Gilbert Company, a corporation, to recover the sum of $1554.00 due the estate by defendant. Judgment having been rendered for defendant upon an agreed statement of facts submitted to the court, plaintiff prosecutes error.

By written contract, dated December 10, 1931, defendant, as contractor of Virginian & Western Railway Company, employed decedent, J. J. Young, to grade certain roadbed for a railway in Wyoming County. The contract authorized defendant to pay those performing labor and furnishing materials in the execution of the work the cost thereof and charge the same to Young. It also permitted the contractor to retain from tile balance due Young, upon completion of the job, a sum sufficient to cover all unsettled claims incurred by him in connection with the work “until the same are settled or paid”. The amount of $1580.04 is owing and due from the estate of decedent, which is insolvent, to persons, performing labor and furnishing materials in the execution of the contract, who are demanding payment of defendant, in accordance with its election to pay the same. Plaintiff is not entitled to recover, but defendant is, by its election, liable, in the amount it owes under the contract, to those having valid claims against the estate for services performed and materials furnished in the execution of the work.

The judgment of the circuit court is, therefore, affirmed.

Affirmed.  