United States v. Rogers & Rogers

These actions were brought in the name of the United States, pursuant to § 2 of the Miller Act [ 49 Stat. 794 (1935), 40 U.S.C.A. § 270b], by the Los Angeles Testing Laboratory and D. L. Holliday, suppliers of labor and materials for a Government school-construction project, against the partnership of Rogers and Rogers, prime contractor for the project, and its surety [see Miller Act § 1, 49 Stat. 793 (1935), 40 U.S.C.A. § 270a].

In each action the defendant prime contractor has answered and asserted a counterclaim against the plaintiff mate-rialmen and the Government’s architect for the project, the latter being brought in as an additional party counterdefend-ant pursuant to Rule 13(h) [Fed.R.Civ.P. 13(h), 28 U.S.C.].

Briefly put, the factual background is this. Holliday supplied transit-mix concrete for the project, and is suing for the balance due on the purchase price. The Los Angeles Testing Laboratory was designated by the Government architect and retained by the prime contractor to test and inspect the concrete, and is suing for the balance of its fee.

The prime contractor alleges in the counterclaim that certain concrete furnished by Holliday was not up to…