In United States for Use and Benefit of Noland Co. v. Skinner & Ruddock, Inc., D.C.E.D.S.C., 164 F.Supp. 616, 618, a letter was sent by the plaintiff to the prime contractor which stated: 'In accordance with a request made by your Mr. Skinner, this is to advise that as to this date Williams Piping and Heating Company (the subcontractor) owes the Noland Company (the Plaintiff) $ 3,128.11 on the Officers Mess job at Charleston Airbase which monies were due and payable in October. We feel sure that this customer will pay us as soon as sufficient collections are effected, and we are glad to work with you in any way for the mutual betterment of everyone concerned.' This letter was written at the request of defendant, was during the course of the work, not within the ninety days after completion and was the only written notice of the indebtedness sent to the defendant. The Court there said:
'* * * The letter in this case, without explanation of its vague or ambiguous terminology, does not comply with the Miller Act as a matter of law in that it does not assert a claim nor does it advise, expressly or by implication, that the supplier is looking to the contractor for payment of the subcontractor's bills, which is a substantial requirement of the Act. The testimony fails to develop or explain the language of the letter as an assertion of a claim by showing the existence of circumstances affecting the use -- plaintiff and the defendant Skinner & Ruddock, which indicate that the letter was sent as a Miller Act claim or that its terminology was such, surrounding circumstances considered, that it reasonably would be received as an assertion of such a claim by the defendants.'
In the present case, on the contrary, the written notice was within the ninety-day period, the oral demand of plaintiff upon defendant, the submission of the invoices and the discussion thereon, together with all the other surrounding circumstances indicate that the letter was sent as a Miller Act claim and that it was received by the defendant as such a claim.
In United States for Use of Old Dominion Iron & Steel Corp. v. Massachusetts Bonding & Ins. Co., 3 Cir., 272 F.2d 73, 75, plaintiff was a supplier of a subcontractor. The subcontractor within the ninety-day period (on January 22, 1957) wrote a letter to the prime contractor advising it that he (the subcontractor) had a number of creditors of which plaintiff was one. The letter was not requested or authorized by plaintiff and nothing, in fact, was done by plaintiff. The subcontractor subsequently, on February 12, 1957, advised plaintiff that he had written such letter. The Court in following the Bowden case distinguished the Coffee and Houston cases and said:
'The letter of February 12, 1957, does not avoid the explicit result of the Bowden, case, supra. In neither the Bowden case nor the case at bar did the plaintiff-supplier take any action the protect his interests by complying with the Act. The mere writing of a letter by the subcontractor to the plaintiff, informing plaintiff that his claim had been listed with the prime contractor, cannot cure the fatal defect in plaintiff's case.
'It must be noted that in the Coffee case, supra, there was a written exhibition to the contractor by the claimant as a notice of his claim. In the Houston case there was 'oral notice to principal contractor' from the claimant, and a written 'acknowledgment of the request, and full recognition of Denton's (subcontractor) indebtedness to Trane (materialman).' * * *'
Plaintiff in the present case did not sit by idly and do nothing. He made an oral demand upon the prime contractor, presented to and discussed with the prime contractor the written statement of amounts due and by whom and followed this with a further written demand upon the prime contractor, which in the light of what preceded, coupled with the prime contractor's own suggestions, could not have been construed by such prime contractor as intended to be or being anything other than a notice under the Miller Act, and what occurred here was in my opinion sufficient compliance with the requirements of the Act.
Let form of judgment be submitted in accordance with the findings of fact and conclusions of law herein.
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