Appeal from the District Court of the United States for the Eastern District of Pennsylvania; Harry E. Kalodner, Judge
Before BIGGS, JONES, and DOBIE, Circuit Judges.
These civil actions were argued before us together and they may be disposed of in a single opinion. The first action was brought by a materialman as use-plaintiff against a general contractor and its surety upon a payment bond given by the general contractor under the Miller Act, 49 Stat. 793, 40 U.S.C.A. § 270a. The second action was brought by a materialman, the use-plaintiff, in contract, against the sub-contractor. In the United States District Court, Judge Kalodner sitting, without a jury, found in favor of plaintiff and entered judgment against the defendants. The defendants have duly appealed to this Court.
Judge Kalodner made the following seventeen findings of fact:
"1. On April 3, 1939, J.A.J. Construction Co., Inc. (hereinafter called the contractor) entered into an agreement with the United States of America for the erection and construction at Philadelphia, Pennsylvania, of the public improvement designated as 'Philadelphia Defense Housing Project Pa-36011.'
"2. Pursuant to the requirements of the Act of Congress of August 24, 1935, chapter 642, 49 Stat. 793, 40 U.S.C.A. Sec. 270a, the contractor as principal, and the American Surety Company of New York as surety, made, executed and delivered to the United States in connection with the contract referred to above, their certain performance bond, and in addition thereto a payment bond on United States standard form No. 25-A approved September 16, 1935, in the penal sum of $738,000.00, conditioned for the payment of labor and material bills incurred in the prosecution of said public work.
"3. On April 21, 1941, the contractor entered into agreements in writing with John W. Lewis, of Philadelphia, Pennsylvania, for the performance of the plumbing, heating and other work required in and about the construction of the public improvement referred to in Finding (1).
"4. On April 21, 1941, at Philadelphia, Pa., Par-Lock Appliers of New Jersey, Inc. (hereinafter called Par-Lock) entered into an agreement with the said Lewis to furnish and install galvanized ducts and other labor and material at said housing project for the price or sum of $39,000.00. It is undisputed that later the agreement was amended to include extras of $1,629.89, making the total $40,629.89.
"5. On May 12, 1941, Lewis authorized the contractor to set aside and guarantee payment to Par-Lock the sum of $39,000.00 by the following letter:
"'J.A.J. Construction Co., Inc.
"'We hereby authorize you to set aside and guarantee payment to Parlock Appliers of New Jersey, Inc., 21 Muirhead Ave., Trenton, N.J., for the sum of Thirty Nine Thousand Dollars . . . ($39,000.00).