Houston Fire and Casualty Insurance Company and Joe B. Evans, Joe I. Evans and R. H. Thorp, Appellants, v. United States of America for the Use and Benefit of the Trane Company, Appellee, 217 F.2d 727 (5th Cir. 1954)

Brought by the United States as use plaintiff upon a Miller Act bond, 40 U.S. C.A. § 270a given by the Bailey Company, as principal contractor, the suit was to recover for the use and benefit of the Trane Company, $6221.51, the balance due it for materials furnished Denton Plumbing & Heating Co., a subcontractor on the job.

The claim was: that the Trane Company, as a materialman and furnisher to Denton Plumbing & Heating Co., Inc. a subcontractor, in connection with the construction being undertaken by Bailey Co., Inc., had furnished materials, appliances, etc. of the value of $9263.08, on which it had been paid $3041.57, leaving a balance due of $6221.51; that the Bailey Company had full knowledge of the furnishing of such materials and the amount due thereon, and that neither Denton Plumbing Company nor Bailey Company had paid it the amount due, and defendant, as surety on Bailey's bond, was liable therefor.

The defendant surety, demurring to the petition on the ground that it failed to state a recoverable claim, moved to dismiss the suit for the reason that plaintiff's claim does not come within the Miller Act, and, answering, denied the indebtedness claimed.

Thereafter, the cause coming on for trial and plaintiff having offered its evidence,¹  the defendants, offering none in rebuttal, urged upon the court that the evidence wholly failed to establish that it did, indeed showed that it did not, come within the provisions of the invoked section²  in that Trane Company had not given the written notice as therein required.

The district judge, of the opinion: that there had been substantial compliance with the requirements of the section; that under the holdings and teachings of the Fleisher case (United States, for Use and Benefit of Hallenbeck v. Fleisher Engineering & Construction Co.), 2 Cir., 107 F.2d 925, affirmed 311 U.S. 15, 61 S. Ct. 81, 85 L. Ed. 12, the statute, giving a remedy on a payment bond to laborers and materialmen, is remedial and under the authorities should be liberally construed; and that the plaintiff was entitled to a judgment; so found and entered judgment accordingly.

Appealing from that judgment, the defendant is here insisting that, giving to the statute the most liberal construction, plaintiff's case fails because "the statutory requirement of notice being unequivocal and without ambiguity is a judicial prerequisite,"³  and it is not even claimed in this case that plaintiff gave a written notice of any kind to the defendant. So insisting, it urges upon us that nothing in the Fleisher case or in any of the other cases cited and relied on by plaintiff, including our case of Coffee v. United States for Use and Benefit of Gordon, 5 Cir., 157 F.2d 968, supports the recovery.

The appellee, on its part, citing the many cases⁴  in which the courts, construing the statute liberally to effect its purpose of protecting materialmen, have held that the statute is sufficiently complied with if the proof shows convincingly that knowledge is brought home to the principal contractor, urges upon us that, under the undisputed evidence, every essential requirement of the statute was met and fully complied with. Conceding that the statute was not literally complied with because plaintiff did not send a written notice by registered mail, indeed it did not send a written notice of any kind, it yet insists: that what occurred in connection with noticing the claim, plaintiff's oral notice to the principal contractor and a written acknowledgment of the request, and full recognition of Denton's indebtedness to Trane, and the fact that it had not been, but must be, paid was more effective than if a written notice had been sent by the materialmen and fully complied with the essential statutory requirements of bringing home in writing to the principal contractor the requisite knowledge of the claim and debt.

We agree with appellee that this is so. It is true that the statute is carefully and meticulously phrased, and if this were a matter of first impression, we might find difficulty in coming at once to the conclusion that what was done in this case was a sufficient compliance with it. However, the decisions under the statute, and particularly Coffee v. United States, for Use and Benefit of Gordon, supra, Note 4, have made it clear that it was. It is not necessary that the writing relied on be signed by the supplier, it is sufficient that there exists a writing from which, in connection with oral testimony, it plainly appears that the nature and state of the indebtedness was brought home to the general contractor. When this appears the object of the statute, to assure that the contractor will have notice, is attained and the statute is sufficiently complied with.

The judgment was right. It is affirmed.