H. Earl Clack Co. v. Staunton Et Al‪.‬

State Highway Contracts ? Action Against Contractor and Surety to Recover for Supplies Furnished to Subcontractor ? Failure of Notice of Claim to Contractor ? Statute ? Action Maintainable on Theory of Agency ? Statutory Construction ? Statute Adopted from Another State ? Rule ? Waiver of Benefit of Statute ? Appeal and Error ? Cause Tried Without Jury ? New Trial ? What Deemed Equivalent to Granting Motion for Non-suit. State Highway Contracts ? Principal and Surety ? Action to Recover for Supplies Furnished Subcontractor ? Absence of Notice of Claim to Contractor ? When Notice Unnecessary. 1. Where a state highway contract declared that the highway commission would recognize a subcontractor only as an employee of the contractor, and the contractor agreed that he would pay all persons who should furnish supplies to subcontractors, a materialman who furnished supplies to a subcontractor commenced action against the contractor and his surety to recover therefor without having first given the notice required by section 5668.42, Revised Codes, which section makes the giving of such notice a condition precedent to the right to proceed to suit, such failure did not deprive him of his right to maintain the action instituted on the theory that the subcontractor was the agent of the contractor and that therefore the latter and his surety were liable for the indebtedness incurred, the