Reiten

Before a contract for the construction of a public work of the United States is awarded, the contractor must furnish a payment bond with surety “for the protection of all persons supplying * * * material in the prosecution of the work.” 40 U.S.C.A. § 270a(a) (2) (Section 1(a) (2) of the Miller Act). And “Every person who has furnished * * * material in the prosecution of the work * * * and who has not been paid in full therefor before the expiration of a period of ninety days after the day on which the last of the * * * material was furnished * * * by him for which such claim is made, shall have the right to sue on such payment bond for tfie amount, or the balance thereof, unpaid at the time of institution of such suit.” 40 U.S.C.A. § 270b(a) (emphasis added).

Appellant, a materialman, brought suit on a payment bond against appellees, a contractor and his surety, less than ninety days after the last of the material for which claim was made by appellant had been furnished. On motion of the surety the complaint was dismissed as to it as premature, with leave granted appellant to file an “amended complaint.” Appellant filed an “amended complaint” asserting the same claim, with the…