This action was brought originally in the Belmont Common Pleas by the village of Holloway against Charles H. Rice and the sureties on a bond which he had executed for an amount sufficient to repair a road in accordance with a certain contract let to Rice.

The bond contained the following provision: among others:

“The said village of Holloway may rely upon and use this undertaking for the purpose of reimbursing itself for any reasonable expense incurred or loss sustained arising because of any defect or defects in said improvement----”.

The Common Pleas sustained a demurrer to the petition on the ground that facts were not stated to show a cause of action which judgment was reversed by the Appeals.

Rice in the Supreme Court contends:

1. That the demurrer should be sustained because the village must actually expend money on repairs before a “reimbursement” could be made.