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UNITED STATES EX REL. LINCOLN ELEC. PRODS. CO. V.

March 15, 1966

The UNITED STATES of America for the Use and Benefit of LINCOLN ELECTRIC PRODUCTS CO., Inc., Plaintiff,
v.
GREENE ELECTRICAL SERVICE OF LONG ISLAND, INC., R. P. McTeague Construction Corp. and Fidelity and Deposit Company of Maryland, Defendants



The opinion of the court was delivered by: RAYFIEL

RAYFIEL, District Judge.

 The use-plaintiff brought this action under the Miller Act, 40 U.S.C.A. § 270a et seq., (the Act) against R. P. McTeague Construction Corp., (McTeague) the prime contractor, Fidelity and Deposit Company of Maryland, (Fidelity) its surety, and Greene Electrical Service of Long Island, Inc., (Greene) the sub-contractor, to recover for electrical equipment furnished by the plaintiff to Greene for the project hereinafter referred to. Greene failed to answer the complaint.

 McTeague entered into an agreement in writing with the United States of America under the terms of which it agreed to act as the general contractor in the construction of a project known as Westhampton Air Force Base, Automotive Maintenance Shop, Project #DA-30075-Eng-11445. Pursuant to the Miller Act Fidelity, as surety, and McTeague, as principal, duly executed and delivered their bond to the United States to secure the payment by McTeague for all labor performed and/or material furnished by subcontractors incident to the prosecution of the work under the aforementioned agreement.

 By written order McTeague engaged Greene to furnish certain labor and materials involved in the installation of the electrical equipment required under the aforementioned agreement. On or about April 29, 1964 the plaintiff and Greene entered into an agreement in writing pursuant to which the plaintiff, in consideration of the sum of $10,500, was to manufacture and deliver to the said project certain items of electrical equipment required to be supplied by Greene under its aforementioned agreement with McTeague. The plaintiff contends that it has duly performed the said agreement on its part but that Greene failed to make any payment thereunder, and there is now due and owing to it the sum of $10,596.

 The plaintiff claims that the last delivery under its agreement was made on December 23, 1964, and that within 90 days thereafter it sent letters to Greene, McTeague and Fidelity by registered mail, informing them that it had fully performed its agreement with Greene but had received no payment thereunder, and demanding payment of the sum of $10,596.00 under the aforementioned bond.

 McTeague claims (1) that the aforementioned notice was not given within 90 days, as required by the Act, and (2) that prior to the receipt of said notice it had paid Greene in full for all work which it had performed before it (Greene) abandoned work under its agreement. McTeague claims, further, that as a result of such abandonment it was obliged to engage others to complete the electrical work, and to purchase material necessary therefor, at a cost exceeding the balance unpaid under its agreement with Greene.

 The pertinent provision of the Act follows:

 
"§ 270b. Same; rights of persons furnishing labor or material (a) Every person who has furnished labor or material in the prosecution of the work provided for in such contract, in respect of which a payment bond is furnished under section 270a of this title and who has not been paid in full therefor before the expiration of a period of ninety days after the day on which the last of the labor was done or performed by him or material was furnished or supplied by him for which such claim is made, shall have the right to sue on such payment bond for the amount, or the balance thereof, unpaid at the time of institution of such suit and to prosecute said action to final execution and judgment for the sum or sums justly due him: Provided, however, That 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 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. Such notice shall be served by mailing the same by registered mail, postage prepaid, in an envelop (sic) addressed to the contractor at any place he maintains an office or conducts his business, or his residence, or in any manner in which the United States marshal of the district in which the public improvement is situated is authorized by law to serve summons."

 At the trial the plaintiff produced both oral and documentary evidence to the effect that it had manufactured or fabricated, and delivered to Greene at the project site at Westhampton Air Base, all the electrical equipment and material which it was required to furnish under the written order of April 29, 1964; that the last item thereof, consisting of 9 panel boards and trim, was delivered on December 23, 1964; that the agreed price therefor, as stated in said order of April 29, 1964, was $10,500, no part of which has been paid, and that on March 23, 1965, in accordance with the provisions of Section 270b of the Act, it served notice on McTeague, Fidelity and Greene by registered mail, demanding payment of said sum of $10,500.

 The defendants contend first that the March 23, 1965 notice did not comply with the Act. While admitting that the said notice was postmarked March 23, 1965, and was received by them, they claim that the notice was not timely since it was not received by Fidelity until March 23, 1965, the 91st day, and by McTeague on March 26, 1965.

 The Act provides that the required notice be given to the general contractor within 90 days after the date of the last delivery of material to the job site, which was on December 23, 1964. The Act further provides that such notice shall be served by registered mail, postage prepaid. That was done. The last day for the mailing of such notice was March 23, 1965, the end of the 90th day following December 23, 1965. The time should be computed in accordance with Rule 6(a) of the Federal Rules of Civil Procedure which provides as follows:

 
"In computing any period of time prescribed or allowed by these rules, by the local rules of any district court, by order of court, or by any applicable statute, the day of the act, event, or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, a Sunday, or a legal holiday, in which event the period runs until the end of the next day which is not a Saturday, a Sunday, or a legal holiday. When the period of time prescribed or allowed is less than 7 days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation."

 Applying said Rule to the instant case, the notice was timely. (See U.S. to the Use of Engineering and Equipment Co. v. Wyatt, D.C., 174 F. Supp. 260).

 I disagree with the defendant's contention that the said notice must be received by the general contractor on the 90th day. As was stated by Judge Frank B. Ellis in the case of United States for the Use and Benefit of ...


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