Liles Construction Company, Inc., and United States Fidelity and Guaranty Company, Appellants, v. United States of America, for the Use of Stabler Paint Manufacturing Company, Inc., Appellee, 415 F.2d 889 (5th Cir. 1969)

Pursuant to new Rule 18 of the Rules of this Court, we have concluded on the merits that this case is of such character as not to justify oral argument and have directed the Clerk to place the case on the Summary Calendar and to notify the parties in writing. See Murphy v. Houma Well Service, 5 Cir. 1969, 409 F.2d 804, Part I.

The facts involved in this case are typical of a Miller Act suit, 40 U.S.C. §§ 270a-e. Liles Construction Company (Liles) entered into a written construction contract with the United States Air Force.¹  Liles obtained a standard payment bond with United States Fidelity and Guaranty Company (U.S.F. & G.) for the protection of all persons supplying labor or material to the government job in accordance with the requirements of the Miller Act.

After a subcontractor, J. B. McKinney Painting Company, had not paid for supplies purchased from the use-plantiff, Stabler Paint Manufacturing Company, (Stabler) Stabler brought this action against Liles, the general contractor and its surety, U.S.F. & G. The district court entered summary judgment in favor of Stabler in the amount of $10,288.05, the value of the materials supplied under the Miller Act.

The primary issue on appeal is whether the trial court correctly determined as a matter of law that the appellee had complied with notice requirements of the Miller Act.²  The giving of such notice is a condition precedent to a supplier's right to sue on the payment bond. Coffee v. United States for Use and Benefit of Gordon, 5 Cir. 1946, 157 F.2d 968; Houston Fire & Casualty Insurance Co. v. United States for Use & Benefit of Trane Co., 5 Cir. 1954, 217 F.2d 727.

Both parties agree that the notice upon which the appellee relies consists of two letters, the first dated July 9, 1965 and the second dated July 10, 1965.³  The July 9 letter referred to an account with the sub-contractor, McKinney Painting Company on a job for the appellant at Fort Stewart, Georgia. This communication, as the appellant admits in its brief, adequately meets the notice requirements of the Miller Act at least as to the Fort Stewart job. The July 10 letter sought to correct a mix-up in the accounting procedure of Stabler and eliminated the claim as to the Fort Stewart account and asserted a claim as to the Eglin Air Force Base account.

Liles argues that the letters should be read separately because they refer to two distinct contracts. If read separately, the appellant claims that the second letter provided insufficient notice because the letter was not sent by registered mail, did not refer to the ninety day time limitation, did not state with substantial accuracy the amount claimed, and did not apprise the general contractor that the use-plaintiff was looking to it for payment.

The test to be applied to the question of the sufficiency of a Miller Act notice was stated in Fleisher Engineering and Construction Company v. United States for the Use and Benefit of Hallenbeck, 311 U.S. 15, 61 S. Ct. 81, 85 L. Ed. 12 (1940):

" [A] requirement which is clearly made a condition precedent to the right to sue must be given effect, but in determining whether a provision is of that character the statute must be liberally construed so as to accomplish its purpose. `Technical rules otherwise protecting sureties from liability have never been applied in proceedings under this statute'".

With the above principle in mind, we conclude that the trial court correctly determined that the notice was sufficient. The district court held that the letters should be read together and that together the letters provided adequate notice that Stabler was looking to Liles for payment. We agree with the district court's conclusion "that it would be doing violence to ordinary language to conclude that the second (letter) merely and only dropped the claim for the Fort Stewart job". Moreover, the absence of registration of the second letter cannot be held to deny Stabler's claim. cf. Fleisher Engineering & Construction Co. v. United States for Use and Benefit of Hallenbeck, supra; United States for Use and Benefit of Franklin Paint Co. v. Kagan, D.C.Mass. 1955, 129 F. Supp. 331. Further the overestimate of the amount due was substantially accurate and fully apprised Liles that Stabler was looking to it, as general contractor, for payment of at least $10,288.05, the amount for which judgment was entered. cf. United States for Use & Benefit of Hopper Bros. Quarries v. Peerless Casualty Company, 8 Cir. 1958, 255 F.2d 137; United States for Use and Benefit of Franklin Paint Co. v. Kagan, supra. Since there is no material factual dispute as to the amount due, we affirm the district court's granting of summary judgment as to the use-plaintiff, Stabler.

In accordance with our holding in United States Fidelity and Guaranty Company v. Hendry Corporation, 5 Cir. 1968, 391 F.2d 13, we grant the appellee's unopposed motion for attorney's fees on this appeal, pursuant to Florida Statutes 627.0127, as amended in 1967. The Clerk is directed to fix said fee in the amount of $875.00 in taxing costs upon this appeal.

Affirmed.