May 8, 1919. the State entered into a contract with the Hahn Construction Oo\. to build a highway in Tuscrawas county, for $76,686. The company gave bond for $96,660, with the London & Lancashire Indemnity Co., one of the defendants in this case, as surety. On Sept. 8, 1920, the company was relieved of the contract under 1209 GC., and the contract was completed by the State under what is known as “Force Account,” at a total cost of $120,773. which amount, after deducting the contract price, left a balance of $44,1086, which the State is seeking to recover in this action from the contractor and its bondsman.

At the close of the trial, the Common Pleas sustained a motion on the part of the Surety Company to withdraw the evidence and discharge the jury. The Court of Appeals affirmed the judgment of the Common Pleas.

Before entering into this contract by the State, it was necessary, under 1218 GC., for the County Commissioners to enter into an agreement to assume that part of the cost and expenses of the improvement above the amount to be paid by the State. The proof showed that the County Commissioners on April 3, 1919, each signed an original resolution, which with their signatures was copied on to the Commissioners’ journal, the resolution agreeing to assume the excess cost and expenses as above.

The Common Pleas took the position that the record so made did not meet the requirement of 4406 GC. which requires the calling and recording of the aye and nay both. It is the claim of the State that what was done was tantamount to the requirements of the statute.