Furthermore, Scott categorically testified that the date of September 9, 1954, given as the 'date work completed' on the said Completion of Contract Report could have been the date the work was accepted by Raff.
It seems more than a strange coincidence that both contracts should have been completed on the same day, -- the first large contract for over $ 300,000 starting in February 1953, and the second relatively small contract for about $ 13,000 starting in November 1953. Exhibit No. 9 (Contract No. 6-1557) clearly indicates that the last requisition date was August 10, 1954. Exhibit No. 10 (Contract No. 6-1616) clearly indicates that the last requisition date was July 21, 1954. Both exhibits indicate that as to both contracts the invoice date was September 27, 1954. Exhibits Nos. 9 and 10 simply cannot be reconciled with Exhibits Nos. 15 and 16, even if they were in evidence.
The seventh paragraph of the contract between the prime contractor and the Government (plaintiff's Exhibit No. 1) provides:
'7. Payments to Contractors. -- (a) * * * progress payments will be made as the work progresses at the end of each calendar month, or as soon thereafter as practicable, or at more frequent intervals as determined by the contracting officer, on estimates approved by the contracting officer. In preparing estimates the material delivered on the site and preparatory work done may be taken into consideration.
'(b) In making such progress payments there shall be retained 10 percent on the estimated amount until final completion and acceptance of all work covered by the contract: * * *'
It would seem to follow that plaintiff would be entitled to receive a progress payment for the work done and materials supplied during that month. This would be effected by means of a requisition made by plaintiff against Raff shortly after the end of each calendar month. The requisition would therefore be for work done or materials supplied in the previous calendar month. It would naturally follow that the requisition of August 10, 1954 (Contract No. 6-1557) covered the preceding month, i.e., July 1954. As this was the last requisition made on that contract, it necessarily follows that the last work performed or materials supplied on Contract No. 6-1557 was performed or supplied prior to July 31, 1954. As the last and only requisition made on Contract No. 6-1616 was made on July 21, 1954, it would necessarily follow that the last work performed or materials supplied on that contract was performed or supplied prior to June 30, 1954. Furthermore, as to this contract, the date of the last and only requisition, to wit: July 21, 1954, was one hundred twenty days before the date of the receipt by Merritt-Chapman of 'Automatic's' demand letter, to wit: November 8, 1954. Certainly the work was performed or materials were supplied prior to the time they were requisitioned for. In his testimony Scott admitted that requisitions represented requests for progress payments.
The Court went to great length to permit plaintiff to furnish further proof of its compliance with the Act. There is absolutely no credible testimony as to the exact completion date of the work contemplated by either of the two contracts in question, nor was there any testimony which would squarely place the completion date of either contract within the required ninety day period. Furthermore, at the second hearing, on being questioned with relation to Exhibits Nos. 15 and 16, plaintiff's witness, Scott, testified as follows:
'Q. Isn't it a fact that the Date Work Completed 9-9-54 on these two exhibits really represents the date that Raff accepted the work? Isn't that a fact?
The Miller Act (40 U.S.C.A. § 270b) under which this action is brought, provides, inter alia, as follows:
'(a) * * * any person having direct contractual relationship with a subcontractor but no contractual relationship express or implied with the contractor furnishing said payment bond shall have a right of action upon the said payment bond upon giving written notice to said contractor within ninety days from the date on which such person did or performed the last of the labor or furnished or supplied the last of the material for which claim is made, stating with substantial accuracy the amount claimed and the name of the party to whom the material was furnished or supplied or for whom the labor was done or performed * * *.'
The written notice in this case in and of itself, it seems to me, was adequate. As stated in United States of America for the Use of Old Dominion Iron & Steel Corp. v. Massachusetts Bonding and Insurance Company, 3 Cir., 1959, 272 F.2d 73, 75, 'the applicable section of the Miller Act is 'remedial' and should be liberally construed, * * *' Further, at page 75, 'As was stated in the Bowden case, ( Bowden v. United States for Use of Malloy, 9 Cir., 1956, 239 F.2d 572) the provisions of the Act require a minimum of attention and effort.'
The Act provides that the written notice must be given 'within ninety days from the date on which such person did or performed the last of the labor or furnished or supplied the last of the material for which such claim is made, * * *' (Emphasis supplied.) An absolute prerequisite of the Act, which is without ambiguity, is that the notice must be given within ninety days of the date the last work was performed or the last of the material was supplied.
Once it became apparent that there was a conflict between the dates set forth in Exhibits Nos. 9 and 10 and the dates set forth in Exhibits Nos. 15 and 16, it was the clear duty of plaintiff to clear the conflict. This was not done.
Plaintiff having failed to clearly establish the date on which it performed the last labor or the date it furnished or supplied the last material, it necessarily follows that it has not met the ninety day requirement. This becomes perfectly apparent when considering the conflict of dates as they appear in the exhibits above referred to.
The requirements under the Act are few but they are clear, concise and unambiguous. As was stated in Bowden, supra, 'We do not believe that Congress intended to have it held that such little expenditure of effort is too much diligence to require of a supplier in order that he may secure his right of action on the payment bond.'
The use plaintiff has failed to prove its compliance with the Act.
Judgment will accordingly be entered in favor of the defendants.