Porter-Lite Corp. v. Warren Scott Contracting Co.

• Decision Date: 13 June 1972
• Docket Number: No. 3,No. 47167,PORTER-LITE,47167,3
• Citation: 126 Ga.App. 436,191 S.E.2d 95
• Parties: CORPORATION v. WARREN SCOTT CONTRACTING COMPANY et al
• Court: Georgia Court of Appeals

Page 95

191 S.E.2d 95

126 Ga.App. 436

PORTER-LITE CORPORATION v. WARREN SCOTT CONTRACTING COMPANY et al.

No. 47167.

Court of Appeals of Georgia, Division No. 3.

June 13, 1972.

Crisp & Oxford, Henry L. Crisp, Americus, for appellant.

Smith & Hargrove, William E. Smith, Americus, for appellees.

Syllabus Opinion by the Court

EBERHARDT, Presiding Judge.

This is a suit filed October 21, 1971, by a manufacturer who shipped certain materials to a subcontractor on a public works job, seeking to recover the price thereof from the prime contractor and the surety on the public contract bond which he posted for the job under Code Ann. § 23-1704 et seq.

Plaintiff alleges that materials of a fair value of $10,051 were supplied to the subcontractor, A & M Supply Company, and that it has not received payment therefor; that the materials (except for one window) were shipped to the job site in Americus January 6, 1971, and delivered shortly thereafter and the window was shipped April 12, 1971, and likewise delivered, it being the last of materials supplied.

By amendment plaintiff alleged that the prime contractor, Warren Scott Contracting Company, had actual notice of its claim, the nature and amount thereof by reason of telephone conversations between plaintiff's employees and its office employees on April 12, 1971, April 26, 1971, and April 28, 1971, and that written notice thereof had been given to the prime contractor by carbon copy of a letter written by plaintiff to the subcontractor dated April 12, 1971, but the contents of the letter are not alleged, nor is a copy attached as an exhibit.

Plaintiff also alleged that the prime contractor had waived the requirement of notice as provided by Code Ann. § 23-1708 when it made full payment to the subcontractor during the 90 day period within which it is required that the notice be given.

Defendant moved to dismiss the complaint because it fails to state a claim upon which relief can be granted, and from an order sustaining the motion plaintiff appeals. Held:

1. It is provided in Code Ann. § 81A-108(a) and 'any pleading which sets forth a claim for relief, . . . shall contain (1) a short and plain statement of the claim showing that the pleader is entitled to relief . . .' And § 81A-109(c) provides that 'In pleading the performance or occurrence of conditions precedent, it is sufficient to aver generally that all conditions precedent have been performed or have occurred,' and in subsection (f) that 'For the purpose of testing the sufficiency of a pleading, averments of time and place are material and shall be considered like all other averments of material matter.'

2. Under Code Ann. § 23-1708 it is required that one furnishing labor or materials for a public contract job and who has no direct contractual relationship with the contractor who furnishes the payment bond, shall have a right to action on the bond 'upon giving written notice to said contractor within 90 days from the day on which such person did or performed the last of the labor, or furnished the last of the material or machinery or equipment 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,' and that 'Notice may be served by depositing a notice, registered mail, postage prepaid, duly addressed to the contractor at any place he maintains an office or conducts his business, or his residence, in any post office or branch post office or any letter box under the control of the Post Office Department, or notice may be served in any manner in which the sheriffs of Georgia are authorized by law to serve summons or process.'

The question raised here is whether the allegations of the complaint, as amended, are sufficient to allege the giving of the required notice, or, if not, whether it sufficiently alleges a waiver of the notice.

3. The requirements of Code Ann. §§ 23-1704 through 23-1708 and of the Miller Act, found in 40 U.S.C. §§ 270(a) through 270(d) are substantially the same. It appears that our statute is derived from the Miller Act. Consequently, the decisions of the federal courts construing the Miller Act are very helpful and most persuasive in construing our own statute. McCallum v. Twiggs County Bank, 172 Ga. 591(1), 158 S.E. 302; Burkhalter v. Glennville Bank, 184 Ga. 147, 157, 190 S.E. 644; Hawes v. Bigbie, 123 Ga.App. 122(2), 179 S.E.2d 660. See also Macon, Dublin & Savannah R.R. Co. v. Stephens, 66 Ga.App. 636, 19 S.E.2d 32. The appellate courts of this State have had little occasion to construe the notice provisions of Code Ann. § 23-1708, and consequently we look to decisions of the federal courts construing notice provisions of the Miller Act. Where the claim rests upon the provisions of a statute, it is elemental that the defendant is entitled to sufficient informative facts from the complaint to show that the plaintiff, if his facts be true, is within the terms of the statute in making his claim. Clyde v. Broderick, 10 Cir., 144 F.2d 348; Daves v. Hawaiian Dredging Co., D.C., 114 F.Supp. 643, 645; Rosenberg v. Hano & Co., D.C., 26 F.Supp. 160; Bucholtz v. Renard, D.C., 188 F.Supp. 888; Baird v. Dassau, D.C., 17 F.R.D. 275.

4. 'A condition precedent is one which must be performed or occur before a plaintiff may maintain his claim for relief and a plaintiff must allege in his complaint the performance or occurrence of all such conditions, or show a legally sufficient reason for their non-performance or non-occurrence, or a waiver of the conditions by the adverse party.' 1 Kooman, Federal Civil Practice, Georgia Treatment, § 9.03. While performance of a condition precedent may be pleaded in general terms, 'where the pleader . . . particularizes the allegations of compliance with a condition precedent and does not show that he comes within the terms of the contract (or statute), the complaint is insufficient.' 2A Moore's Federal Practice, § 9.04. See also 5 Wright & Miller, Federal Practice and Procedure, 429, § 1303. If notice is required by the contract or by statute to be given within a specified time, the time of giving the notice must be alleged. 1 Kooman, supra, § 8.10. Here the statute requires that the notice be given in a particular manner-in writing, and that it be given within 90 days from the furnishing of the last labor or materials. The giving of the statutory notice is a condition precedent to the maintenance of an action on the claim. Jenkins v. Gordy, 105 Ga.App. 255(1), 124 S.E.2d 303; Ingalls Iron Works v. Standard Ins. Co., 107 Ga.App. 454(1), 130 S.E.2d 606; Fleisher Engineering & Construction Co. v. United States for Use and Benefit of Hallenbeck, 311 U.S. 15, 61 S.Ct. 81, 85 L.Ed. 12; United States for Use of General Electric Co. v. H. I. Lewis Construction Co., 2 Cir., 375 F.2d 194, 201(1); Bowden v. United States, 9 Cir., 239 F.2d 572(1), 577; United States for Use and Benefit of American Radiator & Standard Sanitary Corp. v. Northwestern Engineering Co., 8 Cir., 122 F.2d 600(2).

5. Is the notice sufficiently pleaded here to comply with the statutory requirements?

(a) Plaintiff first pleads notice by telephone calls made between its office employees and those of the prime contractor, giving the dates of the calls, in which the nature and amount of plaintiff's claim were revealed to the prime contractor. The dates are well within the 90 day period from the furnishing of the last item, a window, as alleged in the petition. ¹ Pretermitting the matter of whether the telephone conversations as alleged were sufficient in content, they were not written as the statute requires, and oral notice, unless acknowledged in writing by the prime contractor, is simply insufficient as compliance. United States for Use of Acme Transfer & Trucking Co. v. H. S. Kaier, Inc., D.C., 270 F.Supp. 215(2); Houston Fire & Cas. Ins. Co. v. United States, 5 Cir., 217 F.2d 727(2). A written acknowledgment of the oral notice by the prime contractor works a waiver that it be in writing. No such acknowledgment is alleged here.

(b) Plaintiff alleges that the prime contractor had actual notice of its claim by reason of the telephone calls, but actual notice or knowledge on the part of a prime contractor of the account owing by a subcontractor to a supplier of materials does not dispense with the necessity of a written notice as required by the statute. United States for Use and Benefit of Davison v. York Electric Const. Co., D.C., 184 F.Supp. 520(4).

It has been held that a sending to the prime contractor of copies of invoices of materials as they are delivered to the subcontractor does not amount to notice as required by the statute. United States for Use and Benefit of American Radiator and Standard Sanitary Corp. v. Northwestern Engineering Co., 8 Cir., 122 F.2d 600; United States for Use and Benefit of Davison v. York Elec. Const. Co., D.C., 184 F.Supp. 520; United States for Use of Flow Engineering, Inc. v. Continental Cas. Co. D.C., 195 F.Supp. 177(1). While it may serve to afford the prime contractor with information as to what materials are furnished and when, and the cost thereof, it does not give notice that they have not been paid for and that the supplier makes claim therefor against the prime contractor.

A letter addressed to the prima contractor asserting that it is the understanding of the supplier that payment will be made directly by the prime contractor to the supplier for materials to be furnished, or which have been furnished, under a written assignment from the subcontractor does not serve to give the statutory notice. United States for Use and Benefit of Henry Walke Co. v. Van de...