USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

____________________

No. 97-1577

UNITED STATES OF AMERICA FOR THE USE AND,

BENEFIT OF WATER WORKS SUPPLY CORPORATION,

Plaintiff, Appellee,

v.

GEORGE HYMAN CONSTRUCTION COMPANY,

NATIONAL UNION FIRE INSURANCE COMPANY OF
PITTSBURGH, P.A., FEDERAL INSURANCE COMPANY
AND SEABOARD SURETY COMPANY,

Defendants, Appellants.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Patti B. Saris, U.S. District Judge]

___________________

____________________

Before

Torruella, Chief Judge,

___________

Campbell, Senior Circuit Judge,

____________________

and Boudin, Circuit Judge.

_____________

____________________

Steven J. Comen,
________________
Gouin,
_____

with whom

Jeremy M. Sternberg, Dori C.

____________________ ________

Howard J. Hirsch and Goodwin, Procter & Hoar LLP were on

________________
____________________________

brief for appellant, The George Hyman Construction Company.

Bert J. Capone,
_______________

with

whom

CharCretia V. DiBartolo
_________________________

and

Cetrulo & Capone were on brief for appellant, National Union Fire
________________
Insurance Company

of Pittsburgh,

PA; Federal

Insurance Company

and Seaboard Surety Company.

Gary H. Kreppel for appellee.
_______________
____________________
December 10, 1997
____________________

CAMPBELL,

Senior

Circuit

Judge.

Defendant-

_______________________

appellant George Hyman Construction Company ("Hyman") appeals

from the district

Water

Miller

court's judgment awarding recovery

Works Supply

Corporation

Act, 40 U.S.C.

or the "Act").

the district

opinion we

270a-270d

erred in

allowing

concentrate particularly on

Works did

notice requirement; and

close

under

the

(1986) (the "Miller Act"

Hyman makes a number of arguments

court

(1) that Water

sufficiently

("Water Works")

to the

not satisfy

recovery.

as to why

In

this

Hyman's contentions:

the Act's

ninety-day

(2) that Water Works did

not have a

relationship

recovery under the Miller Act.

to

Hyman

to

qualify for

Finding no merit in these

in the other arguments that Hyman advances, we affirm.

or

I.

The

facts are largely

general contractor

on

project

to

build

a $70

mail

Massachusetts (the "Post

Pursuant

to

obtained

a payment bond

Company

the

of Pittsburgh,

about

September 16,

agreement with Calvesco,

undisputed.

Hyman

million

federal

processing

center

Office Project" or

requirements

Seaboard Surety Company

or

BACKGROUND.

of

the

PA, Federal

construction

in

Waltham,

the "Project").

Miller

from National Union

was the

Act,

Hyman

Fire Insurance

Insurance Company,

and

(collectively, the "Sureties").

On

1994,

Hyman entered

into

an oral

Inc. ("Calvesco"), wherein Calvesco

-2-

promised to

serve as

demolition, excavation

and site

work

subcontractor for the Post Office Project.

On

September 16,

1994, the

same

day that

hired Calvesco, Calvesco submitted an application for

to

Water Works,

purveyor of

pipe and

Hyman

credit

piping materials.

Water Works extended an unlimited line of credit to Calvesco.

Calvesco was working on at least three projects at that time,

and the

credit application did

not indicate whether

it was

for a particular project.

Subsequently, Calvesco informed Hyman that it could

not legally serve as subcontractor on the Post Office Project

because

Hyman

it was

and

Holdings,

a non-union

Calvesco

shop.

agreed to

Inc. d/b/a Charles

On September

replace

27, 1994,

Calvesco

A. Jackson Co.

with Iron

("Jackson"), a

unionized company created by the principals of Calvesco.

On October 11,

that it

had replaced Calvesco

Office

Project.

Calvesco,

Works

1994, Jackson notified Water

had

Jackson,

Jackson requested

receive

Water Works's

extended

Water

as subcontractor on

Works

credit

it,

invoices.

only to

refused

that

to

supply

the Post

rather than

Because

Calvesco

Works

and

Jackson

Water

not

to

unless

Calvesco executed a corporate guarantee.

Until the corporate

guarantee could be signed, Water Works agreed to

materials

to the

Post

Office

Project

site

request and to send the invoices to Calvesco.

ship piping

at

Jackson's

That same day,

-3-

Jackson placed

an order for

pipe.

Water Works

shipped the

material to

"Charles A. Jackson

Works

the

sent

invoice to

Co., c/o Calvesco."

"Calvesco,

Inc.

Water

Attn: Jackson

Gateman, Treas." ("Gateman").

From early October through December 29, 1994, Water

Works

filled

seven

Office Project.

the

Post Office

Gateman

Water Works

at Calvesco.

of

$53,493.83

Office

and to

Jackson

to

the Post

send the

paid for

The

five of

and dated November

first unpaid

the seven

Project manager

for

Jackson.

are the

invoice,

30, 1994, corresponded

November 1, 1994 by Lou

to

invoices to

two invoices remain unpaid and

this action.

order placed on

relating

continued to ship materials

Project site

shipments; the other

subject

purchase orders

for

to an

Ingegneri, the Post

The

second

unpaid

invoice,

for $157.76 and dated

the last delivery

January 12, 1995, related to

made by Water Works to

occurred on December 29, 1994.

the Project, which

This second invoice does not

indicate the name of the person placing the order.

During

January and February of 1995, Water Works's

credit manager Stanley Wernick

telephone

outstanding

with

several

November and

employees

copy of

responded

this letter

of

Hyman

December invoices.

Wernick sent a demand letter

("Wernick") conversed on

to Calvesco.

to Hyman

and the

the

about

the

On March

7,

Wernick also sent

Sureties.

Hyman

to Wernick's communications in writing on March 22

-4-

by

indicating that

it had

attorneys and was not

turned

the matter

over to

its

paying any claims until it had a clear

picture of its options.

On

Middlesex

April

County

5,

1995,

Water

Superior Court

Works

against

filed

suit

Calvesco and

in

its

personal guarantor for monies owed on several jobs, including

the Post Office Project.

settlement in

This state court suit resulted in a

which Calvesco agreed

to pay Water

Works for

the cost of

its materials.

Calvesco has

not satisfied this

judgment.

On the

action,

it also

same day that

filed

Water Works filed

one-count

against Hyman and the Sureties

Miller

other actions

Office Project in

common to all

Calvesco

The

district court

action with

Hyman arising

the claimants.

fact and law

entities, and

subcontractor from September

27, 1994,

with

Post

court found that

were separate corporate

was Hyman's

through September

The district

twenty-five

from the

order to determine issues of

and Jackson

that Calvesco

1994

Works's federal

brought against

complaint

in the United States District

Court for the District of Massachusetts.

consolidated Water

Act

its state

Jackson serving

16,

as

subcontractor thereafter.

Water

Works argued to

the district court

that it

was in a direct contractual relationship with Calvesco during

the

period

of

time

when

Calvesco

was

Hyman's

direct

-5-

subcontractor.

The district

court rejected

this argument,

finding that the

credit application between Water

Works and

Calvesco did not constitute a contract.

Nevertheless, the court held that Water Works could

recover under the

satisfied

the

court

Miller Act.

the 90-day notice

held

that

Finding that

Water Works had

requirement in the

Water Works

could

Miller Act,

recover

from the

payment bond on the amount

owed for its November order under

two alternative theories.

First, Jackson had an open account

with

Water Works.

Second, Water Works

could recover under

the doctrine of quantum meruit.

The district court

allowed Water Works

to recover

the amount of its November shipment -- $53,493.83, plus costs

and interest -- but not the amount of its December shipment -

- $157.76.

The key

distinction between the two

orders, in

the court's view,

was that the November order

was signed by

Jackson's project manager, whereas the December

order, being

unsigned, could not be plainly attributed to Jackson.

II. STANDARD OF REVIEW.

We

review

de novo
__ ____

questions

interpretation that present pure questions

of

statutory

of law.

See Riva
___ ____

v. Commissioner of Mass., 61 F.3d 1003, 1007 (1st Cir. 1995).

_____________________

The sufficiency of notice under the Miller Act, to the extent

based

on undisputed

facts, is

-6-

commonly

reviewed de
__

novo.
____

See United States ex rel. Consol. Elec. Distribs., Inc. v.

___ ______________________________________________________

Altech, Inc.,
____________

929 F.2d

1089, 1092

(5th Cir.

States ex rel. Moody v. American Ins. Co.,

____________________
_________________

(10th

Cir. 1987).

We uphold

1991); United
______

835 F.2d 745, 748

district court's

findings unless they are clearly erroneous.

factual

See Fed. R. Civ.

___

P. 52(a); United States ex rel. Calderon & Oyarzun, Inc. v.

________________________________________________

MSI Corp., 408 F.2d 1348, 1348 (1st Cir. 1969).

_________

III. DISCUSSION.

A.

The Statutory Scheme of the Miller Act.

______________________________________

The

Miller

performing a contract

construction project

protection of

Act

requires

valued at over

to obtain

of the

270a(a)(2).

The

work on

Act

"furnished labor or material" to

270b(a).

contractor

$25,000 on any

labor and

the project.

provides

recover from the payment bond

general

a performance

persons supplying

prosecution

that

public

bond for

the

material in

the

See 40
___

persons

U.S.C.

who

have

a public project may sue to

any amount owed to them.

Id.
___

The

persons

purpose of

the

Miller

Act

is

"to

protect

supplying labor and material for the construction of

federal public buildings in lieu of the protection they might

receive under state statutes with respect to the construction

of nonfederal buildings."

Carter, 353 U.S.

______

United States ex rel. Sherman v.

______________________________

210, 216 (1957); see also

___ ____

-7-

United States ex
________________

rel. Pittsburgh Tank & Tower, Inc. v. G&C Enters., Inc., 62

___________________________________
__________________

F.3d 35, 35

(1st Cir. 1995) (same).

Courts give the

liberal interpretation to

achieve that purpose.

Carter, 353
______

Clifford F. MacEvoy Co.

_______________________

U.S. at 216;

Act a

See, e.g.,
_________

v. United
______

States ex rel. Calvin Tomkins Co., 322 U.S. 102, 107 (1944).
_________________________________

Despite the

"highly remedial"

nature of the

Act,

MacEvoy, 322 U.S. at 107, there are two important limitations

_______

on who can recover from the

Act

allows recovery

"direct

payment bond.

from the

bond

contractual relationship"

First, the Miller

by persons

with

who have

either the

general

contractor

or

contractor.

interpreted

payment

40 U.S.C.

this

bond by

contractor is

first-tier

subcontractor

270b(a).

provision

to

anyone whose

The

the general

Supreme Court

preclude

relationship

more remote than a

of

recovery

to the

on

has

the

general

second-tier subcontractor.

See J.W. Bateson Co. v. United States ex rel. Bd. of Trustees

___ ________________
_____________________________________

of the Nat'l Automatic Sprinkler Indus. Pension Fund,

_______________________________________________________

434

U.S. 586, 590-91 (1977); MacEvoy, 322 U.S. at 107.

_______

Second, the Act imposes a strict notice requirement

upon

suppliers who

have a

direct

contractual relationship

with a first-tier subcontractor, but no relationship with the

general contractor.

In

order to

recover from

the payment

bond, such suppliers must send written notice of

their claim

on

the payment bond to

the general contractor within ninety

days from the date that they supply the last of the materials

-8-

for which they

make a claim.

40

U.S.C.

270b(a); see also

___ ____

United States ex rel. John D. Ahern Co. v.

_____________________________________________

Contracting Co., 649 F.2d 29, 31 (1st Cir. 1981).1

J.F. White
___________

_______________

B.

Notice under the Miller Act.

___________________________

Fulfilling the Act's

condition precedent

subcontractors.

notice provision is

to recovery

See
___

Ahern, 649
_____

by suppliers of

F.2d

provision serves an important purpose:

date

after

which

subcontractors

the

without

materialmen or suppliers

general

fear

of

a strict

first-tier

at 31.

The

notice

it establishes a firm

contractor

further

may

pay

its

liability to

the

of those subcontractors.

Noland Co. v. Allied Contractors, Inc., 273 F.2d 917,

__________
________________________

See id.;
___ ___

920-21

(4th Cir. 1959).

____________________

1.

The relevant

statutory language concerning

notice reads

as follows:

Every person who has furnished labor or material in

the

prosecution of

project]

therefor

. .

payment bond
having

the work

. and

who

. shall
. . .

direct

provided

has

for [a

federal

paid

in full

not been

have the

right to

sue on

Provided, however, That

________ _______

contractual

such

any person

relationship

with

subcontractor but no contractual relationship express or

implied with the contractor furnishing said payment bond
shall have a right of
upon

giving

ninety days

action upon the said payment bond

written notice
from the date

to said

contractor within

on which such

person .

. .

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. .

shall be served by mailing the same by

postage

prepaid,

in

an

contractor . . . .

40 U.S.C.

270b(a).

-9-

envelop

. . Such

notice

registered mail,

addressed

to

the

1.

Substance of Water Work's Notice.

________________________________

While

adherence

to

the

notice

requirement

mandatory, courts have allowed some informality

with

the terms

which notice

of the

must be

Miller Act

served.

is

in complying

regarding the

method by

See, e.g., Fleisher Eng'g &

__________ _________________

Constr. Co. v. United States ex rel. Hallenbeck, 311 U.S. 15,

___________
________________________________

18

(1940) (holding written notice sufficient although it was

not

sent via registered mail as statute provides); Coffee v.

______

United States ex rel. Gordon, 157 F.2d

______________________________

1946)

(holding that

writing

exhibited

contractor in the

course of a discussion

notice

Act).

under the

Courts

forgiving of deviations from

the

notice be in

1092 (holding

meeting

writing.

that the

was that the

968, 969

to

(5th Cir.

the

general

served as adequate

have also

been

somewhat

the statutory requirement

See, e.g., Altech,

__________ ______

"only reasonable

that

929 F.2d at

inference" from

subcontractor sought payment

from the

general contractor).

The language of

the Miller Act requires

notice to

the general contractor of the amount of the claim and name of

the party

to whom

the material was

furnished; it

does not

expressly require a

40 U.S.C.

270b(a);

demand that the general

see also McWaters & Bartlett v. United

___ ____ ____________________
______

States ex rel. Wilson, 272

______________________

Nevertheless,

correctly,

courts

held that

contractor pay.

have

"the

F.2d 291, 295 (10th

consistently,

written notice

-10-

and

Cir. 1959).

we

think

and accompanying

oral statements must inform the general contractor, expressly

or impliedly,

that the

contractor for payment

nature and state of the

general

contractor."

supplier is

so that it

looking to

the general

plainly appears that

indebtedness was brought home to the

United States ex rel. Kinlau Sheet

_____________________________________

Metal Works, Inc. v. Great Am. Ins. Co., 537 F.2d

__________________
___________________

(5th

Cir.

1976)

the

(internal quotation

marks

222, 223

omitted);

also United States ex rel. Bailey v Freethy, 469

____ _____________________________
_______

see
___

F.2d 1348,

1350-51 (9th Cir. 1972).

Hyman

shown to have

argues that such

notice as Water

provided to Hyman did not

Works was looking to it

Works was

indicate that Water

for payment because the only "formal

notice" that it

received was a copy of

____

letter to Calvesco.

Hyman points to court

that the mere forwarding to

of

a demand

Miller

sent to

Act's notice

Water Works's demand

the general contractor of a copy

a subcontractor

requirement.

Inc. v. Dynateria, Inc., 91

____
_______________

decisions holding

does not

satisfy the

See Maccaferri Gabions,

___ ____________________

F.3d 1431, 1437 (11th Cir. 1996)

(denying recovery under the Miller Act because sending to the

general contractor

sent to the

payment plan

a copy

of a

collection letter

subcontractor, even when

that was

combined with a

and invoices, was insufficient

joint

notice); United
______

States ex rel. Jinks Lumber Co. v. Federal Ins. Co., 452 F.2d
_______________________________
________________

485, 488 (5th Cir. 1971).

-11-

But while adequate notice requires bringing home to

the general contractor that the supplier is looking to it for

payment,

courts have not required formalistic proof of this.

Communications sent

to the general

contractor detailing the

supplier's

claim against the subcontractor may, for example,

be supplemented by

make

oral and other written exchanges if these

it unambiguously

clear that

the

payment from the general contractor.

supplier is

seeking

See Altech, 929 F.2d at

___ ______

1093; Coffee, 157 F.2d at 970; Kinlau, 537 F.2d at 223.

______
______

The record

sent Hyman

the amount

here shows

not only

and details

that Water

of Water

Works

Works's claims

against the subcontractor, but that these were accompanied by

further

oral and written

perceived, and

were in fact

itself for payment.

initiated

communications that could

perceived, as looking

Water Works's credit

matters on February

3, 1995,

only be

to Hyman

manager, Wernick,

by speaking

on the

telephone with two Hyman employees who were handling the Post

Office Project account.

on that day,

been paid

During the course of

several calls

Wernick informed them that Water

Works had not

by the subcontractor

thereupon faxed copies

proofs

of delivery

amount

Water

of Water Works's unpaid

to Hyman,

Works

for its materials.

thus informing

claimed from

the

Wernick

invoices and

Hyman of

subcontractor.

the

The

district court found that, in these calls, Wernick also asked

to obtain

a copy

of Hyman's payment

-12-

bond for

"the express

purpose of filing

to release

district

the requested

court found,

Hyman would issue

Works,

a bond claim."

device

materials.

personnel refused

bonding information,

they countered

with

joint checks payable to

to

ensure

payment

but, as

a promise

the

that

Jackson and Water

for

Water

Works's

Wernick continued to communicate about the unpaid

claims with

February

Hyman's

Hyman

9,

throughout the

Wernick

spoke

again

month

with

of February.

the

same

On

Hyman

employees, who informed him that they were attempting to meet

with the

invoices.

subcontractor to

Finally on March

discuss the issue

of the

unpaid

7, after more phone calls, Water

Works sent to Hyman a copy of

to Calvesco.2

a copy

The copy reflected at the bottom not only that

had gone to

Hyman's three

a demand letter it had written

Hyman but that

Miller Act

Sureties.

1995, Hyman wrote Water Works

indicating that it

copies had been

sent to

Finally, on March

thanking it for its

had already paid Jackson,

22,

patience,

expressing its

____________________

2.

Hyman argues that "the facts of the present case are even

more persuasive

than Maccaferri or
__________

purported demand

letter

Kinlau since Water Works

______
was

not made
___

to

subcontractor Jackson, but rather to Calvesco."

names

"Calvesco"

and

"Jackson"

seem

to

Hyman's

However, the

have

been

used

interchangeably on various occasions, and there is absolutely

no evidence that Hyman was
subcontractor

identified

Jackson were owned in

the

agreement

that

confused over the identity of the

by

Water

Works.

common and Hyman had

substituted

Jackson

Calvesco
been a party
for

Calvesco

and
to
as

subcontractor for the

Water

Works,

Project.

sometimes

While Hyman

referred

"Jackson" was correctly used by

personnel, like

to "Calvesco,"

the

name

Hyman in its March 22 letter

to Water Works declining to pay its claim, showing that Hyman

was fully aware of thecorrect identity of the subcontractor.

-13-

reluctance

Works

to pay the

that it

same bill twice,

had "turned

attorneys and, on

the

and informing Water

entire matter

their advi[c]e, we

over to

are not paying

our

anyone

until we have a clear picture of our options."

The above

Hyman

understood

evidence provides clear

that Water

Works

indication that

was looking

to

it for

payment, having received, as the district court found "actual

notice."

Wernick's

initial request for a copy

of the bond,

following his faxing of the unpaid invoices and his telephone

calls to Hyman about the debt, suggested that Water Works was

looking to it for payment.

be

inferred from

Hyman's promise to

substitute for information

decide

whether

constitute

demand

these

notice.

Water Works

upon

Hyman's comprehension of this can

the

about the bond.

actions

Following

sent Hyman on

issue joint

by

subcontractor.

we need not

themselves

these

March 7

But

sufficed

and other

a copy of

Unlike

checks in

to

exchanges,

Water Works's

the

copy

in

Maccaferri, this
__________

also being sent

indicated at

the bottom

to Hyman's three Sureties on

bond, each of which was designated

to

think of

that copies

a reason

to notify

by name.

were

the Miller Act

It is not

the Sureties

easy

unless Water

Works was looking to the bond for payment.

In

Maccaferri,
__________

the

Eleventh

Circuit

held

that

merely sending the general contractor a copy of the demand to

the subcontractor did not suffice

-14-

to show that the

supplier

was looking for

circumstances

payment to the general, but

were

sought, and there

being sent

Works's

other

far

less

indicative that

was no indication

copies.

demand upon

Here,

the surrounding

that the Sureties

upon receipt of

a copy of

the subcontractor showing

copies had been sent

payment

was

were

Water

plainly that

to Hyman's Sureties, Hyman could

have had no illusion that it was not being asked to pay.

Hyman's letter of March 22, 1995 fully confirms our

interpretation.

In the

letter, Hyman

thanked Water

Works

"for being so patient with us while we are trying to sort out

the problems"

went

on to

relative to

speak

Hyman's strong

that it had

and,

of

the Jackson

Hyman's

reluctance to

claims.

difficulties

pay the

The letter

with

same bill

"turned the entire matter over

Jackson,

twice, and

to our attorneys

on their advice, we are not paying anyone until we have

_________________

a clear

end,"

picture of our

the

letter

options" (emphasis added).

went

on,

responsible for paying these

every legal

remedy

inferred, and we

may,

invoices.

we

do."

in

response to

The

payment

by

what Hyman believed

Water Works.

contractor's

See
___

Altech,
______

letter held

to

fact,

But we

entirely agree, that this

been in

(general

before

"we

"In the

be

held

will exhaust

district

court

letter must have

was a

request for

929 F.2d

provide

at

1093

evidence of

notice).

-15-

We, therefore,

in this period

agree with the district

Hyman received notice sufficient

requirements of the Miller Act.

court that

to meet the

2.

Timing of Water Works's Notice.

______________________________

The district court found that the ninety-day period

began

to run on December 29,

made its

Project.

final

delivery of

Thus, by

letter of March

1994, the day that Water Works

materials

the court's calculations,

7, 1995, a copy

and the Sureties,

to the

written portion of the

Office

Water Works's

of which was sent

and which in combination with

invoices constituted the

Post

to Hyman

the earlier

notice, fit

within the ninety-day limit.

In support of

have used the

rather

date of the November order,

than the date of

the ninety-day

its assertion that the

court should

November 1, 1994,

the December order when calculating

time limit,

Hyman suggests

that each

order

under an

open account represents a separate contract with an

individual

ninety-day

limit.

See
___

United States ex rel.

_______________________

Robert DeFilippis Crane Serv., Inc. v.

_______________________________________

Constr.
Co.,
_____________

(concluding

826

F.

that "[w]here

Supp.

647,

claims are based

contracts, a claim must be made within

on which the supplier 'furnished

material' for each

655

William L. Crow
_________________

(E.D.N.Y.

on a

series of

90 days from the date

or supplied the last of the

underlying contract");

United States ex
_________________

rel. I. Burack, Inc. v. Sovereign Constr. Co., 338 F.

____________________
______________________

-16-

1993)

Supp.

657,

661 (S.D.N.Y.

argues,

1972).

Under

this

the limit on the November order

reasoning,

Hyman

had run by the time

that Water Works sent notice to Hyman.

While several district courts have held that Miller

Act

notice runs

weight

from each

order on

of authority contradicts

an open

contract, the

that position.

See United
___ ______

States ex rel. A&M Petroleum, Inc. v. Santa Fe Eng'rs, Inc.,

__________________________________
______________________

822

F.2d 547

(5th

Cir. 1987)

(collecting

cases from

the

Second, Fourth,

and Tenth

Circuits that

have held,

either

implicitly or explicitly, that notice on an open account runs

from the

920-21.

last delivery

In

although a

Noland,
______

of materials);

the

Fourth

strict reading might

notice provision by

contractor, the goal

Noland, 273
______

Circuit

reasoned

fulfill the purpose

offering more protection to

of a specific statutory

F.2d at

that,

of the

the general

provision must

take a back seat to the purpose of the overall statute, which

is

to provide

recovery

materials but

for

not received

suppliers

who

compensation.

have

provided

See Noland,
___ ______

273

F.2d at 920-21.

We

agree

with

the reasoning

in

Noland.
______

Where

claims are based

on an open

account theory, the

ninety-day

notice period for all of the deliveries begins on the date of

the last delivery to the project.

The parties to this action

agree that Water Works delivered the last of its materials to

the Post Office

Project on December 29, 1994.

-17-

We therefore

conclude

that the district

court correctly refused

recovery on the November order

to deny

merely because it was part of

an open account.

Hyman also

denied

recovery to

$157.76,

argues that, since

Water

Works for

it should not have used

the district

the December

court

order of

the date of that order for

purposes of calculating the timeliness of notice.

We are not

persuaded.

As

states that

an initial

the time

matter, we

note

limit runs from

delivery of material "for which a claim

270b(a).

last

The statute does not

that the

statute

the date of

the last

is made."

40 U.S.C.

start the time limit on the

claim for which the plaintiff eventually recovers; such

a provision might prove unworkable.

But

even

if

the

statute

runs

recoverable claim, we see little

problem.

Works

order,

recovery on

the December

from

last

In denying

Water

the district

court

wrote a footnote explaining its reasoning for

between

the

distinguishing

the November and December orders: the November order

form contained the name of a Jackson employee while there was

no name on the December

order.

The district court concluded

that there was "no evidence as to whether Calvesco or Jackson

placed the [December] order."

Water Works's recovery

Accordingly, the court limited

to the amount

($53,493.83) plus costs and interest.

-18-

of the November

order

The

undisputed facts are as follows.

First, Water

Works provided materials that were incorporated into the Post

Office Project.

Second, Water Works did

not begin shipping

these materials until after Jackson became the

subcontractor

on the

insisted upon

Project.

Third,

sending its invoices

five shipments

although Water Works

to Calvesco, Jackson paid for the first

by Water Works.

Fourth, Calvesco was

not a

subcontractor on the Project during the time that Water Works

shipped materials to the Project.

Water Works delivered

Fifth, the last date that

materials to the Project

was December

29, 1994.

On these facts,

have

questioned if Calvesco

December order.

the

to

we see no reason for

rather than Jackson

inference

materials

is

placed the

Calvesco, having been replaced by Jackson as

subcontractor on the Post

order

the court to

that

for

this

job.

Jackson placed

earlier ones.

While in the

court's denial

of the

reject the court's

Office Project, had no reason

The

this

absence of a

$157.76 stands, we

only

order,

as

it did

cross appeal, the

see no

determination that the December

date triggered the notice period.

reasonable

reason to

29, 1994

As

court

did

December

the notice

not

29,

err

1994,

in

was adequate

beginning

Water

Works

and

the

as the

notice period

satisfied

requirements of the Miller Act.

-19-

C.

district

Water Works's Relationship to Hyman.

___________________________________

the

from

notice

In order to recover from the payment bond, a person

must have a "direct contractual relationship" either with the

general contractor or with a direct subcontractor.

270b(a); see
___

Water

Works

also Bateson, 434 U.S. at 590-91.

____ _______

agree

that they

Hyman argues further

had

no

relies upon

that Water Works did not

the

undisputed

Hyman and

direct relationship.

contractual relationship with any of Hyman's

Hyman

40 U.S.C.

fact

have a direct

subcontractors.

that

Water

Works

consistently refused to extend credit to Jackson and regarded

Calvesco as its customer.

As

allowed

the district court correctly noted, courts have

recovery under

furnish materials

the

Miller

to a subcontractor

Act

by

suppliers

"from time to

who

time on

open account

F.2d at

F.2d

. without formal

919; see also

___ ____

417, 422-23

Water

was

subcontractor

1994.

the

contract."

Noland, 273
______

Apache Powder Co. v. Ashton Co., 264

_________________
___________

(9th Cir.

Works supplied

Jackson

1959).

materials

It is

to

demolition,

the

excavation

undisputed that

Project

and

that

and

site

work

on the Post Office Project after September 27,

In addition, Jackson, rather than Calvesco, paid Water

Works's

the

. .

first five invoices.

district court's

account

This evidence clearly supports

finding

of the

between Jackson and Water

-20-

existence of

Works.

an open

Since Jackson was

Hyman's direct subcontractor,

the Act's tiering requirements

are satisfied.

Since we

find

that the

allowed Water Works to recover

district court

correctly

under an open account theory,

we need not address the propriety of its alternative holding,

which allowed recovery on the basis of quantum meruit.

We

have

carefully

considered

Hyman's

other

arguments; none of them

persuade us that the district

erred in its determination.

Affirmed.
________

court

-21-