This action was brought originally by the village of Garfield Heights and certain material-men on a bond furnished by DagherHolland Construction Company under a contract for public work.

The damages of the village upon default of the contractor proved to be an amount greater than the bond provided for.

The case was tried upon an agreed statement of facts and the Cuyahoga Common Pleas awarded the full amount of the bomjh to the village which judgment was affirmed! :by the Court of Appeals. ^

The Cleveland Builders Supply & Brick Company et al. in the Supreme Court contend:

1. That the material-men under Section 2365-1 to 2365-4 GC. should be paid before the village.

2. That if the material-men should not be paid before the village that both material-men and the village should pro-rate any sum to be distributed.