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UNITED STATES EX REL. WESTINGHOUSE ELEC. SUPPLY CO

December 11, 1959

UNITED STATES of America, at the relation of and for the use of WESTINGHOUSE ELECTRIC SUPPLY COMPANY
v.
NATIONAL SURETY CORPORATION



The opinion of the court was delivered by: DUSEN

Findings of Fact

The trial judge makes the following Findings of Fact:

 1. The United States Army Corps of Engineers entered into a written agreement, No. DA-36-109-Eng-6193, with Joseph W. Montgomery, trading as Montgomery Construction Co., dated March 26, 1956, for construction by Montgomery of Nike Site 78 at Edgemont, Pennsylvania, for the contract price of $ 543,915.

 2. The United States Army Corps of Engineers entered into a written agreement, No. DA-36-109-Eng-6194, with Joseph W. Montgomery, trading as Montgomery Construction Co., dated March 26, 1956, for construction by Montgomery of Nike Site 97 at Eureka, Pennsylvania, for the contract price of $ 544,709.

 3. The defendant, The National Surety Corporation, as surety, and Joseph W. Montgomery, trading as Montgomery Construction Co., as principal, pursuant to the provisions of the Miller Act executed and delivered to the United States of America their two separate joint and several bonds, both dated March 26, 1956, conditioned for the prompt payment to all persons supplying labor and material in the prosecution of the construction of the said two Nike Sites, 78 and 97. The amount of the bond with reference to Nike Site 78 was $ 271,957.50 and the amount of the bond with reference to Nike Site 97 was $ 272,354.50.

 4. Nike sites consist primarily of storage facilities, launching equipment and guidance equipment for Nike missiles, which are an integral part of our country's national defense.

 5. Nike Site 78, located at Edgemont, Pa., and Nike Site 97, located at Eureka, Pa., are both within the territorial jurisdiction of this court.

 6. These suits were commenced on January 17, 1958, by the use plaintiff.

 7. The date of final settlement of both contracts involved was sometime after January 17, 1957.

 8. At the time these suits were commenced, more than 90 days had elapsed since the last material was furnished by the use plaintiff for which a claim is made.

 9. Joseph Montgomery, trading as Montgomery Construction Co., entered into a written contract with Maguire Engineering Co., Inc., on May 29, 1956 (plaintiff's Exhibit 1), which provided that Maguire Engineering Co., Inc., was to supervise the installation of the electrical work comprehended for Nike Sites 78 and 97 and to prepare material lists and obtain prices from electrical suppliers. The lists were to be presented to Montgomery Construction Co. for approval before orders were placed, excepting when, in the opinion of the Maguire Engineering Co., Inc., such delay might cause undue hardship or expense to the Montgomery Construction Co., in which case orders were to be placed by the Maguire Engineering Co., Inc., with verbal approval.

 10. Subsequent to the execution of the contract of May 29, 1956, between Montgomery Construction Co. and Maguire Engineering Co., Inc., it was agreed by the parties to the contract that the requirement that all orders be approved by the Montgomery Construction Co. be ignored and that Maguire Engineering Co., Inc. should order any necessary materials directly from the suppliers.

 11. An account was opened with the use plaintiff by the Montgomery Construction Co.

 12. Joseph W. Montgomery, trading as Montgomery Construction Co., by Joseph W. Montgomery and Edmund J. Maguire acting for Joseph W. Montgomery, requested the use plaintiff to supply and deliver substantial electrical materials, itemized in Exhibit A attached to the use plaintiff's Complaint in Civil Action No. 23965 and Exhibit A attached to the plaintiff's Complaint in Civil ...


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