Before PHILLIPS, Chief Judge, BRATTON, Circuit Judge, and VAUGHT, District Judge.
The United States brought this action on behalf of Roberts against Lee E. Morris, Inc.,*fn1 and Pacific National Fire Insurance Company*fn2 under the Miller Act, 40 U.S.C.A. § 270b, to recover a balance alleged to be due under a subcontract entered into between Roberts and Morris.
On January 29, 1953, Morris entered into a written contract with the United States to furnish materials and perform the work for the construction and completion of miscellaneous alterations and repairs in the United States Post Office and Court House, in Cheyenne, Wyoming, for the sum of $73,800. On the same date, Morris, as principal, and the Insurance Company, as surety, pursuant to 40 U.S.C.A. § 270a(a)(2), executed and delivered to the United States a bond, conditioned as required by § 270a(a)(2), supra.
On April 12, 1953, Roberts and Morris entered into a subcontract, the material portions of which read as follows:
"Gentlemen: I hereby propose to furnish all labor and materials, equipment, supervision of labor, & performance of all operations necessary for the proper installation of all work in accordance with U.S. specifications No. C157, dated November 24, 1952, and all drawings noted therein for the sum of $20,000,00.
"Accepted: Lee E. Morris, Inc., Lee E. Morris, Pres.
"If cost of marble exceeds $1200.00, the difference will be paid by Gen. Contractor. $1200.00 to be deducted from above agreed price if marble is to be eliminated, and additional plaster work, therefore, be paid by general contractor.
"If in event that the cost of the job exceeds the total price agreed on, the difference will be adjusted by the General Contractor.
"/s/ Lee E. Morris, Pres."
On April 10, 1953, Lee E. Morris, President of Morris, and Roberts entered into preliminary negotiations with respect to the subcontract. Lee E. Morris told Roberts they would have to get together on some type of agreement within a day or two because he was due back in New York. Roberts replied that it would be impossible for him to get prices and arrive at the total cost and submit a subcontract bid in that length of time. Lee E. Morris prepared a subcontract which embraced that portion of the subcontract set out above the signature of James E. Roberts, and submitted it to Roberts on the morning of April 12, 1953. Roberts told Lee E. Morris he was hesitant to sign the contract. Lee E. Morris then told Roberts that if Roberts would take the job, he would guarantee that Roberts would not lose any money. Thereupon, the last two paragraphs were added to the subcontract.
Roberts was not advised of the prime contract price.
Morris paid Roberts on the subcontract $18,200.03. Recovery was sought of an alleged balance of $17,967.85. Roberts introduced an exhibit which he said represented the total cost of doing the work ...