Fleisher Engineering Construction Co v. United States Hallenbeck

• Decision Date: 12 November 1940
• Docket Number: No. 15,15
• Citation: 311 U.S. 15,85 L.Ed. 12,61 S.Ct. 81
• Parties: FLEISHER ENGINEERING & CONSTRUCTION CO. et al. v. UNITED STATES for Use and Benefit of HALLENBECK
• Court: U.S. Supreme Court

311 U.S. 15

61 S.Ct. 81

85 L.Ed. 12

FLEISHER ENGINEERING & CONSTRUCTION CO. et al.

v UNITED STATES for Use and Benefit of HALLENBECK.

No. 15

Argued Oct. 17, 18, 1940.

Decided Nov. 12, 1940.

Mr. Frank Gibbons, of Buffalo, N.Y., for petitioners.

Mr. Edwin J. Culligan, of Buffalo, N.Y., for respondent.

Mr. Chief Justice HUGHES delivered the opinion of the Court.

The United States brought this suit on behalf of George S. Hallenbeck to recover upon a bond given by Fleisher Engineering & Construction Company and Joseph A. Bass, with their sureties, and providing for the payment for labor and material furnished under a contract between the principals on the bond and the United States for the construction of a certain housing project. Part of the labor required by the contract was performed by Hallenbeck for a subcontractor with the approval of the contractors. The suit was brought under the Miller Act of August 24, 1935, 40 U.S.C. 270b, 40 U.S.C.A. § 270b. Plaintiff obtained a summary judgment (D.C., 30 F.Supp. 964) which the Circuit Court of Appeals affirmed. 2 Cir., 107 F.2d 925.

The applicable provision of the Miller Act is set forth in the margin.¹ The question is whether the giving of the required written notice to the contractor was sufficient, as it was not sent by 'registered mail'. The Circuit Court of Appeals held that as the receipt of written notice was conceded and the contents of the notice were adequate, the statute was satisfied. In view of alleged conflict with the decision in United States for Use and Benefit of John A. Denie's Sons Co. v. Bass, 6 Cir., 111 F.2d 965, we granted certiorari. 309 U.S. 693, 60 S.Ct. 886, 84 L.Ed. 1034.

In construing the earlier Act, the Hurd Act, 40 U.S.C.A. § 270, for which the Miller Act is a substitute, we observed that it was intended to be highly remedial and should be construed liberally. United States for Use of Alexander Bryant Co. v. New York Steam Fitting Co., 235 U.S. 327, 337, 35 S.Ct. 108, 111, 59 L.Ed. 253; Illinois Surety Co. v. John Davis Co., 244 U.S. 376, 380, 37 S.Ct. 614, 616, 61 L.Ed. 1206; Fleischmann Construction Co. v. United States, 270 U.S. 349, 360, 46 S.Ct. 284, 289, 70 L.Ed. 624. We recognized that the statute created a new right of action and that compliance with the prescribed limitation was essential to the assertion of the right conferred. Accordingly, as it was provided that a material-man could not bring suit on the contractor's bond in the name of the United States within six months from completion and settlement, the Court held that this provision plainly conditioned the right to sue. United States ex rel. Texas Portland Cement Co. v. McCord, 223 U.S. 157, 162, 163, 34 S.Ct. 550, 552, 553, 58 L.Ed. 893. That ruling was distinguished in the case of the Alexander Bryant Company, supra (235 U.S. 327, 35 S.Ct. 113, 59 L.Ed. 253) where it was held that the provision of the Act requiring notice to be given to other creditors by the creditor availing himself of the right to sue within the specified year, if the Government did not bring suit within six months after completion, was not 'of the essence of jurisdiction over the case' or 'a condition of the liability' of the surety on the bond. In short, 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'. Illinois Surety Co. v. John Davis Co., supra (244 U.S. 376, 37 S.Ct. 616, 61 L.Ed. 1206). The same principle should govern the application of the Miller Act.

In the instant case, we may lay on one side the fact that the notice was addressed to the project engineer. As the court below said, it was admitted that the notice was in writing and was sent by mail and that it reached one of the two contractors who had jointly and severally agreed to perform the contract. And at this bar, the actual receipt of the notice and the sufficiency of its statements have not been challenged.

In giving the statute a...