Baker

This action is brought under the Miller Act, 40 U.S.C. §§ 270a and 270b, for the recovery of sums due for labor and materials furnished upon a public work of the United States. Appellee Baker, the plaintiff below, was subcontractor upon the job and appellant Pinole Land Company, Inc., was the prime contractor with the United States. Appellant United States Fidelity and Guaranty Company was Pinole’s surety upon its performance bond furnished pursuant to § 270a. Ap-pellee First Western Bank and Trust Company, as assignee of Baker, intervened as plaintiff.

Baker, by this action, seeks recovery of sums allegedly due him for labor and materials furnished. Pinole asserts a setoff for rental of equipment. The District Court rendered judgment for Baker, allowing Pinole, as setoff, what the court found to be the reasonable value of Pin-ole’s equipment utilized by Baker. Upon this appeal Pinole contends that the rental price of the equipment was fixed by contract and that it was not available to the court to award compensation based upon reasonable value.

On April .10, 1956, Pinole entered into a contract with the United States to do certain clearing and grubbing work on the banks of the…