The opinion of the court was delivered by: FOLLMER
This matter having come on for hearing without a jury, I make the following
1. Under date of May 27, 1952, the defendant, Merritt-Chapman & Scott Corporation, entered into a contract with the United States of America known as Contract No. DA-36-109 eng.-2901 for the construction of buildings, utility systems and site improvements for the Signal Corps Depot, Tobyhanna, Monroe County, Pennsylvania. The said contract was to be performed and executed at Tobyhanna, Monroe County, which is in the Middle District of Pennsylvania.
2. Under date of May 27, 1952, the defendant, Merritt-Chapman & Scott Corporation as principal and the other defendants as sureties entered into a payment bond in accordance with the Miller Act, 40 U.S.C.A. §§ 270a and 270b, in the penal sum of $ 2,500,000 conditioned for payment to all persons supplying labor and material in the prosecution of the work provided for in said contract.
3. John T. Evanick & Company was a subcontractor on the job under the Frederick Raff Company which, in turn, was a subcontractor under the defendant, Merritt-Chapman & Scott Corporation.
5. On the same date, the plaintiff, McGregor, entered into a second contract (hereafter referred to as the 'Sauerman contract') with John T. Evanick & Company to erect a stiff-leg head post and three bridle posts similar to Sauerman drawings.
6. The labor to be performed or materials to be furnished or supplied under the plaintiff's contracts with John T. Evanick & Company were a part of the labor to be performed or the materials to be furnished or supplied under the contract of John T. Evanick & Company with the Frederick Raff Company.
7. Suit was instituted on December 9, 1955, against the prime contractor, Merritt-Chapman & Scott Corporation, and the sureties on the payment bond given under the Miller Act.
8. The plaintiff, McGregor, performed the last labor and furnished and supplied the last materials on the bunker contract around January 1, 1954.
9. The plaintiff, McGregor, performed the last labor and furnished and supplied the last materials on the Sauerman man contract during the early part of 1954.
10. The attention of McGregor having been called to certain errors and omissions such as missing bolts, in the work performed under the bunker contract, had two ironworkers work one hour each on June 9, 1955, to correct these defects.
11. The attention of McGregor having been called to certain errors and omissions consisting of missing bolts and the failure to close some holes which had been burned into the posts for erection purposes, under the Sauerman contract, had two ironworkers work four hours each on June 20, 1955, to correct such defects.
12. The correction of errors in the work performed by McGregor and completed in early 1954 and which consisted in supplying some missing bolts and closing some holes in the head posts, which had been overlooked, was pursuant to an inspection made in 1955 followed by ...