Before MEDINA, WATERMAN and MARSHALL, Circuit Judges.
This is the second time this case has been before us. On October 23, 1962 we dismissed the first appeal because the summary judgment was only partial and there was a further undetermined claim for $1,715. United States for the Use and Benefit of Charles R. Joyce & Son, Inc. v. F. A. Baehner, Inc., 2 Cir., 1962, 309 F.2d 154. The action is by the United States for the use of Charles R. Joyce & Son, Inc., a firm which claimed there was a balance due for work and materials furnished to the sub-contractor F. A. Baehner, Inc. on a project for the construction of a building known as Building E-5, Phase 2, a Reactor Cell, at the Knolls Atomic Power Laboratory in the Town of Niskayuna, County of Schenectady, New York, under Contract AT(30-3)464 with the Atomic Energy Commission on behalf of the United States. Hambly Construction Company, Inc. was the contractor with the United States and the usual Miller Act bond for proper performance of the work and the payment of bills was furnished by National Surety Company, 40 U.S.C. § 270b.
After the remand it was found by the District Court that Joyce "had failed to prove its right to recover said amount of $1,715" and the claim was dismissed on March 7, 1963, the amended judgment being entered on March 21, 1963. The District Court, however, adhered to its original decision holding in favor of Joyce for an alleged balance due in the amount of $5,890.60. This appeal by Hambly and National Surety followed.
Without reference to the apparent breach by Joyce that is reflected in the dismissal of its claim for the $1,715 above referred to, we are constrained to reverse the judgment because none of the letters relied upon by Joyce complied with the simple requirements of the Miller Act.
The controlling language of the Act, 40 U.S.C. § 270b, is
"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 such 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."
This has very naturally been construed by the courts as requiring that "the writing must inform the prime contractor, expressly or by implication, that the supplier is looking to the contractor for payment of the subcontractor's bill." Bowden v. United States, 9 Cir., 1956, 239 F.2d 572, at page 577, citing numerous authorities. The ruling in this Circuit is the same. United States for Use and Benefit of J. A. Edwards & Co. v. Thompson Construction Corp., 2 Cir., 1959, 273 F.2d 873, 876. True it is that the Act is to be liberally construed. But to eliminate the minimal requirement just set forth would entirely emasculate the statute.
Applying this test, and disregarding the fact that the first letter was sent before the completion of the work to be performed by Joyce, the letters are plainly insufficient. They do not even intimate or suggest that any claim is being asserted against the prime contractor or that Joyce is looking to the prime contractor for the payment of his bill.
The first letter under date of July 29, 1960, entitled "Bldg. E5, Phase II Reactor Cell, Knolls Atomic Energy Comm." informed Hambly, allegedly confirming a conversation of the previous day, "it is our understanding that you will guarantee payment of liabilities accumulated by the F. A. Baehner Company with respect to ventilation work performed on the subject project." Hambly replied on August 3, 1960 denying any agreement to guarantee payment of Baehner's liabilities and stating that Hambly did "not feel there is any doubt that arrangements can be made so that your payment will be forthcoming."
The next letter from Joyce to Hambly, of August 4, 1960 refers to the letter of July 29, 1960 and states that the amount "to be paid to our company" has been changed from $7,530.60 to $7,605.60. Still no intimation that Joyce will look to Hambly for the payment of its bill.
The final letter from Joyce's lawyers to Hambly is as follows:
Mr. W. J. Hambly Hambly Construction Company P.O. Box 78 ...