295 F2d 186 United States John Evanick Company v. Merritt-Chapman & Scott Corporation

295 F.2d 186

UNITED STATES of America, to the use of JOHN T. EVANICK & COMPANY
v.
MERRITT-CHAPMAN & SCOTT CORPORATION, Fidelity and Deposit Company of Maryland, American Employers Insurance Company, The Aetna Casualty and Surety Company, National Surety Corporation, Maryland Casualty Company, New Amsterdam Casualty Company, Hartford Accident and Indemnity Company, Appellants.

No. 13510.

United States Court of Appeals Third Circuit.

Argued October 2, 1961.

Decided October 10, 1961.

James W. Scanlon, Scranton, Pa. (David J. Conroy, John W. Bour, Scranton, Pa., on the brief), for appellants.

James J. Zaydon, Scranton, Pa. (Edward M. Murphy, Scranton, Pa., on the brief), for appellee.

Before GOODRICH, STALEY and SMITH, Circuit Judges.

PER CURIAM.

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1

This is an appeal from a judgment for the plaintiff in a suit brought under the Miller Act, 40 U.S.C.A. § 270b. The only question here is whether the plaintiff gave notice to the prime contractor within the ninety days prescribed by the act. The trial judge made a specific finding that "both the oral and written notice was given by plaintiff * * * to the prime contractor * * * within ninety days from the date on which John T. Evanick & Company did and performed the last of the labor and furnished and supplied the last of the material for which the claim was made." 1960, 185 F.Supp. 587, 589. This conclusion was reached after a hearing and consideration of the evidence offered there. There was conflict in testimony, it is true. But the trial judge reached the conclusion quoted above and on the record we cannot say that it was clearly erroneous. See Fed.R.Civ.P. 52(a), 28 U.S.C.

2

The judgment will be affirmed.