Noland Company v. Allied Contractors, Incorporated

Decision Date24 December 1959
Docket NumberNo. 7925.,7925.
Citation273 F.2d 917
PartiesNOLAND COMPANY, Inc., Appellant, v. ALLIED CONTRACTORS, INCORPORATED, and Maryland Casualty Company, Appellees.
CourtU.S. Court of Appeals — Fourth Circuit

Alexander M. Heron, Washington, D. C. (William A. Fisher, Jr., Baltimore, Md., on the brief) for appellant.

T. Thornton Murray, Baltimore, Md., for appellees.

Before SOBELOFF, Chief Judge, and SOPER and HAYNSWORTH, Circuit Judges.

SOPER, Circuit Judge.

This suit under the Miller Act, 40 U.S.C. §§ 270a, 270b, 270c, and 270d, was brought by Noland Company, Inc. to recover the sum of $1,033.36 for materials furnished by Noland to Thomas Electric Company, a subcontractor of Allied Contractors, Inc., the prime contractor under two Government contracts for the construction of Nike I Project Controlled Area and Nike I Project Launching Area at Davidsonville, Maryland. The defendants were Allied Contractors and its surety, Maryland Casualty Company. They defended chiefly on the ground that the suit was barred as to certain items of the claims by the limitations of § 270a of the statute.

There were six shipments under each contract, beginning on December 12, 1954 and ending March 25, 1955 under the first contract, and beginning December 28, 1954 and ending April 6, 1955 under the second contract. On May 5, 1955, Noland notified Allied by registered mail of its claim for the material furnished; and the present suit was brought by Noland within one year of the final settlement between the United States and Allied, as required by § 270b (b), as amended by the act of Congress of August 4, 1959.

The statute § 270b(a) provides that every person who has furnished labor or material in the prosecution of the work provided for in a government contract for the construction of a public building or public works 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 material was furnished for which such claim is made, shall have the right to sue on the 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 provided, however, that any person having direct contractual relationship with a subcontractor but no contractual relationship express or implied with the contractor shall have a right of action on the bond upon giving written notice to the contractor within ninety days from the date on which such person performed the last of the labor or furnished or supplied the last of the material for which the claim is made.

Noland had no contractual relationship with the prime contractor but based its claim on a direct contractual relationship with Thomas Electric Company, a subcontractor. It was first objected by the defendants that Noland had no such relationship with the subcontractor because the goods were furnished from time to time over the counter, so to speak, without any formal contract between Noland and Thomas. This objection was quickly and correctly disposed of by the District Judge since goods purchased on open account necessarily involve a contract between the buyer and seller and it has been so held in cases under the statute. See United States, to Use of Noland Company, Inc. v. Maryland Casualty Co., D.C.Md., 38 F.Supp. 479, 482; American Casualty Co. of Reading, Pa. v. Southern Materials Co., 4 Cir., 261 F.2d 197.

The real controversy between the parties centers on the fact that some of the deliveries of material were made more than ninety days prior to the notice from Noland to Allied on May 5, 1955. It is contended that there can be no recovery from the bonding company for these goods, and the District Judge accepted this view, and limited recovery to such of the materials as were furnished within the ninety-day period prior to the giving of the statutory notice. He held that the notice provision of the statute was enacted for the protection of the general contractor and that this purpose would be defeated if the materialman should be allowed to keep the right of action alive indefinitely by making a series of independent sales without knowing how much material would be needed or how long the subcontract would run. He was impressed with the similarity of the language of § 270b in regard to the notice with the wording of the provision for a ninety-day notice in the Maryland Mechanics Lien Act, art. 63, § 11 of the Maryland Code of 1957, and with the construction of the Maryland statute by the Maryland Court of Appeals. The Maryland statute provides that if the contract for furnishing materials shall have been made with any other person except the owner, the person furnishing materials shall not be entitled to a lien unless within ninety days after furnishing the same he shall give notice in writing to the owner. In construing this statute in Brunt v. Farinholt-Meredith Co., 121 Md. 126, 131, 88 A. 42, the court said that the purpose of the notice was to afford the owner an opportunity to protect his property against liens and that, in the absence of an express contract, the character of the act, the time within which the materials were furnished and the object of the materials may afford proper grounds for the presumption that the materials were furnished with reference to an understanding from the beginning that such materials would be furnished if required by the builder; and in such case the notice dates from the last item in the account, but, where the materials are furnished for separate and distinct purposes or at different times and at considerable intervals or under distinct contracts or orders, although used in executing one and the same contract with the owner, no such presumption will arise, and the...

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  • National State Bank of Newark v. Terminal Const. Corp.
    • United States
    • U.S. District Court — District of New Jersey
    • May 9, 1963
    ...cover work performed within 90 days of the notice date. We need not therefore consider the doctrine of Noland Co. v. Allied Contractors, Inc., 273 F.2d 917 (4th Cir., 1959) to the effect that if the notice is within 90 days of any work performed by an individual laborer, it will cover all t......
  • United States v. Travelers Cas. & Sur. Co. of Am.
    • United States
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    • September 23, 2014
    ...statute, “the measuring date will be the date when the last material is furnished under the last contract.” Noland Co. v. Allied Contractors, Inc., 273 F.2d 917, 920 (4th Cir.1959) ; see also Water Works Supply Corp., 131 F.3d at 30 ; United States ex rel. A & M Petroleum, Inc. v. Santa Fe ......
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    ...the notice is in time as to all of the deliveries if it is given within ninety days from the last delivery." Noland Co. v. Allied Contractors, Inc., 273 F.2d 917, 920 (4th Cir.1959); see also Apache Powder Co. v. Ashton Co., 264 F.2d 417, 423-24 (9th Cir.1959); Fourt v. United States ex rel......
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    • February 17, 1966
    ...for Use and Benefit of J. A. Edwards & Co. v. Bregman Const. Corp., E.D.N.Y. 1959, 172 F.Supp. 517 and Noland Company, Inc. v. Allied Contractors, Inc., 4 Cir. 1959, 273 F.2d 917. In the J. A. Edwards & Co. case plaintiff, a supplier of a subcontractor, had furnished materials to the subcon......
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